OPINION
Presently before the Court is the summary judgment motion of Defendants Camden County Board of Social Services, Clement Carney, Robert Ellis and Sandra Mayers. Plaintiff Lizsandra Marrero, a former unit clerk in the income maintenance unit of the Board of Social Services (“the Board”), asserts several claims relating to the manner in which she was treated during her tenure with the Board and to the circumstances under which she was ultimately dismissed from her position. Plaintiff contends that she was unlawfully subjected to disciplinary action, and was later fired, because she exercised her constitutionally-protected rights to object to the conditions of her employment and that her dismissal violated the provisions of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq. Plaintiff also asserts gender discrimination and retaliation claims under the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1, et seq., and claims for *460 intentional infliction of emotional distress and interference with prospective economic advantage 1 . This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367.
Because there remain issues of material fact relating to whether the actions taken against Plaintiff in response to conduct protected by the First Amendment and the LAD, and because Plaintiff has offered sufficient evidence to allow a trier of fact to conclude that the Defendants violated the notice and certification provisions of the FMLA by refusing to consider granting her a leave of absence, summary judgment on Plaintiffs FMLA and retaliation claims will be denied. However, because Plaintiff has not made the required showing that the actions taken against her would not have occurred “but for” her gender and because she has not demonstrated the necessary elements of her tort claims, summary judgment on those claims will be granted.
I.
In 1978, the Camden County Board of Social' Services adopted a formal dress code policy designed to create a “positive image” for the agency. This dress code remained in effect throughout Plaintiffs tenure with the Board, which began in November, 1992 and ended in July, 2000.
Plaintiffs “difficulties at the workplace” began in March, 1997, when she was first disciplined for failing to adhere to the Board’s dress policy. 2 (Am. Compl. at 2). Plaintiff testified at her deposition that she responded to this action by speaking with a union representative, who contacted Clement Carney, the Deputy Director of the Board of Social Services, on Plaintiffs behalf. (Pl. Dep. at 76). On September 9, 1997, that representative, Rosetta Pitts, directed a letter to Robert Ellis, the Board’s Director, informing him that the union opposed the disciplinary action taken against Plaintiff. According to Plaintiff, this letter was the result of a “series of correspondence” between Pitts, Carney and Sandra Mayers, the Administrator of the Income Maintenance Unit. On September 16, 1997, Plaintiff was again sent home because of the way she was dressed. This action was followed by a letter from May-ers stating that should Plaintiff again run afoul of the dress code, more serious disciplinary action would follow.
Plaintiff alleges that things “escalated” after the 1997 incidents. (Am. Compl. at 2). In addition to the “numerous occasions” on which she was criticized for dressing inappropriately, Plaintiff claims that she was the subject of inappropriate and harassing comments such as “your panties are showing”, “I can see the print of your privates” and “are you wearing your daughter’s clothes” made by Defendants and others. (Am. Compl. at 3). In July of 1999, Plaintiff sent Defendants a Tort Claims Notice, pursuant to N.J.S.A. § 59:8-4, claiming that “several events occurring over the last two to three years ... have created a hostile work environment which has continued to the present date.” (Pl.Ex.PP). Plaintiff also claimed to have been subject to “retaliation” for reporting an incident of sexual assault that *461 occurred between her and Defendant Junious Coles. 3 (Id.).
Plaintiff claims that she was again sent home for violating the dress code on July 21, 1999, the same day that Defendants received and allegedly discussed Plaintiffs Tort Claims Notice. (Pl. Dep. at 206, 207). 4 According to Plaintiff, things “got worse for me after I went to get advice from an attorney,” in early 1999. (Pl. Dep. at 207). Plaintiff stated that during 1999 she was sent home from work more frequently and that the Board “had people watching over me”, which “resultfed] in ... being forced to leave work due tо an anxiety reaction.” (Pl. Stmt, of Mat. Facts at 18; Pl. Dep. at 207). This leave was ultimately designated as FMLA leave and lasted six weeks. Upon returning to work in September, 1999, rather than being reassigned to her old job as a unit clerk, Plaintiff became a “floater”, a position which she contends was “less desirable.” (Am. Compl. at 6). Plaintiff concedes, however, that this position was equivalent to her former job as a unit clerk in terms of responsibilities, salary and benefits and that she was restored to her unit clerk position within two months. (Pl. Dep. at 189).
On June 1, 2000, Plaintiff filed an action in the Superior Court of New Jersey, alleging, inter alia, sexual harassment, gender discrimination and retaliation in violation of the LAD and the First Amendment. (Defendants later removed the case to this Court.)
On June 26, 2000, Plaintiff was once again called to meet with Mayers and Carney to discuss alleged dress code violations. Plaintiff testified that she “got upset” by the demand, left the office and did not return to work that day. (Pl. Dep. at 187,188).
The next day, Plaintiff called her supervisor, William Tucker and left a voice mail message stating that she had suffered an “anxiety attack” and would need to be placed out on leave. According to Plaintiff, she was at that time experiencing “nervousness, crying” and an inability to work “due to a hostile work environment.” (Pl. Stmt, of Mat. Facts at 12). At the time of her call, Plaintiff had apparently already visited her physician, Dr. Arthur McDermott, who had recommended that she take a leave of absence. (Pl. Dep. at 169). Plaintiff then called the Board’s personnel department, stated that she had been placed on a “sick leave” by her doctor and requested that the appropriate forms be sent to her. (Id. at 172). What happened next is a matter of some contention. Plaintiff states that Clement Carney got on the phone and “in a very loud tone of voice” told her that her leave was not accepted and “to get back to work or ... be terminated.” (Id.). Carney, however, insists that he simply advised Plaintiff of the proper procedure for requesting sick leave. (Carney Dep. at 36, 37).
In any case, Plaintiff did not report to work the following week. Plaintiff states that she did, however, immediately request *462 a letter from Dr. McDermott stating the basis for his diagnosis. (PI. Dep. at 173-174). On July 5, Plaintiff sent a letter to Director Ellis, along with state disability forms she had received from Dr. McDer-mott, stating that she was on sick leave and would like the completed disability forms returned to her. (Pl.Ex.V).
The forms, however, were never sent back. Instead, Carney sent her a letter, dated July 7, stating that if Plaintiff wanted to request sick leave, she needed to follow the procedures outlined in the Board’s employee handbook and the union collective bargaining agreement. In the interim, the letter stated, she was considered on unauthorized leave and would be regarded, pursuant to N.J.A.C. 4A2-6 .2(b), as having resigned not in good standing. Although Dr. McDermott ultimately did send a letter (dated July 18) to the Board confirming his diagnosis, Plaintiff was, after a disciplinary hearing before Defendant Ellis (which Plaintiff did not attend), fired on July 28, 2000.
Plaintiff moved, pursuant to Fed. R.Civ.P. 15(a), to add her FMLA claims to the Complaint and to incorporate the events of June and July into her existing discrimination and retaliation claims. This request was granted by the Court on October 20, 2000 and the Amended Complaint was filed on October 25. The instant Motion for Summary Judgment was filed on August 20, 2001.
II.
“[S]ummary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’”
Celotex Corp. v. Catrett,
In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party.
Pollock v. American Tel. & Tel. Long Lines,
III.
Plaintiff contends that she was suffering from a “serious health condition” when she left work in June, 2000 and that because her subsequent absences were protected by the FMLA, the Defendants violated the Act by discharging her for excessive absenteeism during that period. Defendants respond that, regardless of whether her absence was protected by the FMLA, Plaintiff had an “independent” obligation to comply with the Board’s own sick leave notification procedures and that her failure to do so constituted a “legitimate nondiscriminatory reason for terminating plaintiffs employment.” (Def. Reply at 4).
A.
Congress enacted the Family and Medical Leave Act of 1993 “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” 29 U.S.C. § 2601(b)(1); 29 *463 C.F.R. § 825.101. The Act entitles eligible employees to twelve unpaid workweeks of leave during “any 12-month period.” 29 U.S.C. § 2612(a)(1). As it concerns this case, the Act provides leave for an employee suffering from a “serious health condition” that “makes the employee unable to perform the functions of [his or her] position,” and entitles such employees to reinstatement upon their return. 29 U.S.C. §§ 2612(a)(1)(D), 2614(a).
Courts interpreting the FMLA have recognized that the Act creates two relatively distinct causes of action.
See, e.g., Bachelder v. America West Airlines, Inc.,
First, the FMLA makes it unlawful for an employer “to interfere with, restrain, or deny the exercise of or the attempt to exercise” any right provided by thе Act. 29 U.S.C. § 2615(a)(1). Claims under this provision are often referred to as “interference” claims.
See Strickland,
The claim asserted by the Plaintiff in this case is properly analyzed as an interference claim under § 2615(a)(1). The crux of Plaintiffs claim is that because she was entitled to FMLA leave in June of 2000, the absences for which she was fired could not lawfully be considered as grounds for dismissal. Contrary to Defendants’ contentions, Plaintiffs is not a discrimination claim. As the Seventh Circuit has noted:
the question in a discrimination case is whether the employer treated one employee worse than another on account of something ... that a statute makes irrelevant. ... A statute such as the FMLA, however, creates substantive rights. A firm must honor statutory entitlements; when one employee sues, the firm may not defend by saying that it treated all employees identically.
Diaz v. Fort Wayne Foundry Corp.,
B.
Central to the purposes of the FMLA is that its provisions apply even where the entitlements created by the Act are in excess of those that an employer would be willing or able to provide on its own. 29 C.F.R. § 825.101;
Victorelli v. Shadyside Hospital,
The Board’s 2000 Employee Handbook 5 and the contract between the Board and the Communication Workers of America, Plaintiffs union, state that an employee must provide a doctor’s certificate for any absences in excess of five consecutive days. However, according to the Department of Labor’s FMLA regulations, where an employee seeks “unforeseeable” medical leave, an emplоyer who wishes to confirm the employee’s condition must first request a medical certification from the employee and then give the employee at least 15 calendar days in which to comply. 29 C.F.R. § 825.305. Thus, while the Board is obviously free to impose a five-day rule for the granting of nonFMLA sick leave, where the FMLA is implicated, the Board must afford each employee at least fifteen days in which to provide a requested certification. 6
Given that § 825.305 seems to address the same notice issue as does the Board’s sick leave policy, it is difficult to see how, as the Board contends, their policy does •not diminish the protections of the FMLA. It seems clear that, at least from the perspective of an employee suffering through an unexpected medical emergency, a policy that provides five days, rather than fifteen, in which to determine that the condition necessitates extended FMLA leave, to visit a physician and to provide documentation of that visit and the condition, clearly “diminishes” the rights provided by the FMLA. 7
C.
The issue, then, is whether the Plaintiff was entitled to FMLA leave for her condition and whether she complied with the provisions of the FMLA regarding obtaining that leave. See 29 C.F.R. §§ 825.303; 825.305.
Under the FMLA, a “serious health condition” is defined as:
(a) an illness, injury, impairment, or physical or mental condition that involves:
*465 (1) Inpatient care in a hospital, hospice, or residential medical care facility including any period of incapacity ... or any subsequent treatment in connection with such inpatient care; or
(2) Continuing treatment by a health care provider [which is defined as]:
(i) a period of incapacity ... of more than three consecutive calendar days, and any subsequent treatment or period of incapacity ... that also involves:
(A) treatment two or more times by a health care provider ...; or
(B) treatment by a health provider on at least one which results in a regimen of continuing treatment under the supervision of a health care provider....
29 C.F.R. § 825.114. The Defendants do not appear to challenge the seriousness of the Plaintiffs condition and therefore it is sufficient for the purposes of this motion to note that there is nothing in the statute or regulations that prevents Plaintiffs anxiety and depression from qualifying as a serious condition under the Act. Indeed, the regulations expressly recognize the seriousness of mental illness under certain circumstances. See 29 C.F.R. § 825.114(c) (“Mental illness resulting from stress or allergies may be serious health conditions, but only if all the conditions of this section are met.”).
Under the FMLA, an employee is under no duty to provide any documentation of her condition unless and until her employer so requests. 29 C.F.R. § 825.305. If an employer doubts the seriousness or veracity of an employee’s condition, it may request that the employee provide a certification issued by a health care provider. 29 U.S.C. § 2613. If an employer seeks a certification, it must provide the employee with “written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations.” 29 C.F.R. § 825.301(b)(1);
Zawadowicz.,
Defendants contend that Plaintiff failed to comply with the FMLA because “Plaintiff was asked to provide information and/or documentation as to the reason for her absence and abandonment of her position,” but did not do so. (Def. Br. at 31). Although Defendants state that Plaintiff was only required to submit information “and/or” documentation, their primary objection seems to be that Plaintiff failed to provide them with a doctor’s note explaining her absence. 8
On July 7, 2000, Clement Carney wrote to Plaintiff stating that her July 5th letter was insufficient and that Plaintiff needed to provide a written statement from her physician “giving the reasons for [her] sick leave.” This letter told her to return to work immediately, but did not give her any sort of deadline for the submission of her doctor’s certification.
As noted above, if an employee informs her employer that she wishes to take FMLA leave, her employer must provide
*466
her with “written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations” and giving her at least fifteen days from the date of the notice to comply. 29 C.F.R. §§ 825.301, 825.305. Further, FMLA leave may not be delayed or denied because of inadequate notice unless it is clear that the employee had
actual notice
of the FMLA’s requirements. 29 C.F.R. § 825.304(c). See also,
Roger v. Dade Behring, Inc.,
There is no evidence at this stage that Plaintiff ever received notice of the date by which she had to provide certification of her condition. Even if the policies contained in the Board’s employee handbook were sufficient to inform Plaintiff that a doctor’s certification would be required, 9 Defendants were required to inform Plaintiff that she had fifteen days to provide the Board with that certification. This they did not do. Defendants were also required to post notices relating to FMLA leave and to include specific information in their employee handbook informing employees of their “entitlements and obligations” under the Act. 29 C.F.R. §§ 825.300, 825.301. This was not done either. (See Carney Dep. at 20-21). Thus, even without considering the very real possibility that Plaintiff did, in fact, comply with the fifteen-day rule, it is clear that there are serious questions of fact relating to whether Defendants met their FMLA notice obligations to Plaintiff and, accordingly, whether they were permitted to follow through with Plaintiffs termination.
Defendants argue, however, that they were justified in their dismissal of Plaintiff becausе the certification ultimately provided by Dr. McDermott was “deficient since it failed to specify a date for her return to work, the nature and extent of her alleged disability, an appropriate diagnosis, and a statement that she was unable to perform the functions of her position.” (Def. Br. at 32). While the regulations do permit an employer to request all of this information, 29 C.F.R. § 825.306, the employer need not do so. In any case, it is clear that an employer cannot request certain, limited information from an employee and then fire her for not providing further information beyond that specifically requested. Regardless, termination is not an appropriate response for an inadequate certification. Section 825.305(d) provides that where an employer finds a certification incomplete, it must give the employee a reasonable opportunity to cure any deficiencies.
Finally, the Court notes that while a defendant may defend against an FMLA charge by arguing that an employee would have been dismissed even had she not taken FMLA-protected leave, 29 C.F.R. § 825.216(a),
O’Connor v. PCA Family Health Plan, Inc.
D.
To conclude, if Plaintiffs absences were protected by the FMLA, and if she eom- *467 plied with the notice and certification requirements of the Act, those absences could not be, as they clearly were, considered as a basis for Plaintiffs dismissal. As discussed above, there remain a number of factual issues relating to the sufficiency and propriety of the parties’ actions and those issues, such as whether Plaintiffs June 27 notice was sufficient to inform the Board that she wished to invoke the FMLA, are properly resolved by a jury. Accordingly, summary judgment as to the FMLA allegations contained in Count Six of Plaintiffs Amended Complaint is denied.
IV.
A.
Plaintiff also claims that she was subjected to disciplinary action, was “denied promotions and transfers,” and was ultimately dismissed in retaliation for engaging in activities protected by the First Amendment of the United States Constitution.
It is well-settled that a public employee may bring a retaliation claim under 42 U.S.C. § 1983 where she is subjected to disciplinary action for reasons that infringe on her constitutionally-protected interest in freedom of speech.
Rankin v. McPherson,
Defendants respond initially to Plaintiffs allegations by arguing that none of the actions taken against her were “adverse.” (Def. Br. at 23, 24). They contend that the Board’s enforcement of its dress code policy, its decision to reassign Plaintiff as a “floater,” and its denial of lateral transfers did not have a negative impact on Plaintiff and the conditions of her employment. For instance, Defendants comment that the enforcement of the dress code was not adverse because Plaintiff “was not demoted, suspended or terminated at that time.” (Br. at 5).
Defendants’ contentions are misplaced, however, as the scope of adverse action, for the purpose of a First Amendment retaliation claim, is not limited to drastic retaliation. As mentioned above, an employment action is considered adverse, for the purposes of determining unlawful retaliation, if it is likely to chill “a person of ordinary firmness” in the exercise of their First Amendment rights.
Dadonna,
B.
The Third Circuit has recognized a three-step framework for the analysis of First Amendment retaliation claims.
See Green v. Philadelphia Housing Authority,
The parties appear to agree that Marrero’s conduct was protected by the First Amendment. Defendants state that “it is conceded that plaintiffs filing of the lawsuit in June of. 2000 constituted protectеd activity” and do not put forward any arguments relating to the nature of Plaintiffs earlier claims. (Reply at 6). In any case, this Court has recognized that, in the Third Circuit at least, the filing of any lawsuit constitutes protected activity.
Pollock,
In addition, the 1997 filing of Plaintiffs union grievance is protected, as the San Filippo court noted that an employer’s entry into a collective bargaining agreement providing a formal grievance procedure is “one example of formal governmental adoption of a mechanism for redress of grievances.” Id. at 442. 10
Because the issue of whether Plaintiffs speech was protected is a relatively easy *469 one, the parties properly focus much of their attention on the issue of whether Plaintiff has offered sufficient evidence to demonstrate a causal connection between her protected conduct and the Board’s actions against her.
In a case such as this, a sufficient causal connection is demonstrated where a plaintiff shows that constitutionally protected conduct was a “substantial” or “motivating” factor in an employer’s decision.
Mt.
Healthy,
In deciding a motion for summary judgment, the Court must “view the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.”
Armbruster v. Unisys Corp.,
Here, Plaintiff discusses three specific incidents the timing of which she contends establishes the requisite causal connection between Plaintiffs complaints and Defendants’ adverse employment actions. First, Plaintiff points to the fact that, on September 16, 1997, one week after her union representative sent a letter to Robert Ellis objecting to the way Plaintiff had been disciplined for two prior dress code violations, Plaintiff was sent home for an alleged dress code violation and a letter from Sandra Mayers threatening further disciplinary action was sent to her.
Second, as mentioned, Plaintiff alleges that, after the Board received her 1999 Tort Claims Notice, “things got worse.” She alleges (although the dates she indicates in her brief are neither supported or refuted by the deposition excerpts given to the Court) that she was sent home for violating the dress code on July 21, 1999, the very same day that Defendants received her Tort Claims Notice.
Finally, Plaintiff was again disciplined for dress code violations three weeks after she filed this lawsuit in June, 2000. As furthеr evidence, Plaintiff points to the fact that she stopped receiving performance evaluations in the Fall of 1997, soon after her problems with Defendants began, and that these evaluations were relevant to her applications for lateral transfer and promotion. Given this contentious state of affairs, it seems a reasonable inference that Defendants actions were motivated by their anger over what they perceived as baseless claims. However, this evidence
*470
need not be considered in isolation, as it has been recognized that “it is causation, not temporal proximity ... that is an element of plaintiffs ... case.”
Farrell v. Planters Lifesavers Co.,
It has been recognized in the Title VII context that evidence of a pattern of antagonism between employer and employee is persuasive evidence of retaliation.
See Kachmar
Finally, the statements and deposition testimony of several of the Defendants themselves permit an inference of retaliatory motivation. When Plaintiff reported her grievance to her union representative, Clement Carney allegedly became angry and shouted “don’t even tell me that I’m singling you out! I’m sick and tired of you dressing in tight clothes!” This “singling out” comment appears to be a reference to Plaintiffs union complaint and could lead to an inference that Carney’s subsequent actions were motivated, at least in part, by his anger over Plaintiffs allegations. Further, Carney and Mayers both testified that they were “angered” or “bothered” by the filing of Marrero’s lawsuit. This testimony is sufficient, in conjunction with the evidence discussed above, to lead a finder of fact to the conclusion that a retaliatory motive played a substantial role in Defendants’ decision.
The final issue to be addressed under the
Mt. Healthy
framework is whether Defendants have demonstrated that the employment actions taken against Plaintiff would have occurred even in the absence of protected conduct.
Mt. Healthy
at 287,
As noted, Plaintiff has offered evidence that the Board’s dress code was rarely enforced against anyone else. Further, the fact that Plaintiff was granted FMLA leave with relative ease in August, 1999 indicates that Defendants had the ability to delay termination proceedings at their discretion. The policy under which Plaintiff was terminated states that an employee who is absent from work for five consecutive days without approval should be considered to have resigned. N.J.A.C. 4A:2-6.2(b). The provision of the New Jersey Administrative Code upon which Defendants rely goes on to state that “approval of the absence shall not be unreasonably denied.” Id. Defendants have not offered any evidence to demonstrate that their actions were consistent with their prior practices and that, especially given the clear requirements of the FMLA, approval of Plaintiffs absence was not unreasonably denied. Therefore, it is concluded that Defendants have not met their burden, under Mt. Healthy and its progeny, of *471 showing by a preponderance of the evidence that their disciplinary actions against Plaintiff would havе occurred absent her protected conduct.
C.
Defendants’ final argument is that summary judgment should be granted as to the Board of Social Services because Plaintiff has failed to demonstrate any custom or policy of the Board that can provide the basis for a jury finding of municipal liability under § 1983.
In
Monell v. Department of Social Services,
the Supreme Court held that the doctrine of
respondeat superior
is inapplicable to § 1983 and that “Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy caused a constitutional tort.”
Although neither party discusses it, the issue of “whether a particular official has final policymaking authority is a question of state law.”
Jett v. Dallas Independent School District,
“The identification of thоse officials whose decisions represent the official policy of the local governmental unit itself is a legal question to be resolved by the trial judge before the case is submitted to the jury.”
Jett,
In
Andrews v. City of Philadelphia,
the Third Circuit found the Philadelphia Police Commissioner to be a policymaker based on the fact that he had “promulgated and disseminated” the Departments training manual relating to the issue of sexual harassment and had issued bulletins and regulations on the issue.
*472 The Board’s dress code policy was originally promulgated by Ellis’ predecessor in office and provides that the ultimate penalty for code violations should be determined at a “departmental hearing” conducted, presumably, by the Director. Further, the progressive discipline policy created by the Camden County Board of Social Services states that “the decision making process surrounding the imposition of major disciplinary penalty will always be in consultation with the Director or his designate.” (Def.Br., Ex. 2). While it is unclear from the record who was responsible for the original issuance of the discipline policy (it may well have been the Director), the policy does appear to place final authority in the hands of the Director by granting him ultimate authority over the decision-making process under the policy and by permitting him to avoid entirely the terms of the policy entirely in certain cases. (Id.) While it is true that an employee terminated pursuant to a “major disciplinary action” has a right to appeal to the New Jersey Board of Personnel, see N.J. Admin. Code tit. 4A, § 2-2.8 (2001), “minor” discipline (including, one imagines, discipline for dress code violations) is left to the policies of the Board and any “negotiated agreements” to which it is a party, Id. § 2-3.2.
Even if Ellis (or another policymaker) did not make all of the decisions regarding Plaintiff, municipal liability may still be appropriate if the Board’s policymakers acquiesced in a “custom” which permitted retaliation against Plaintiff.
See Monell
at 690,
D.
Because Plaintiff has offered evidence sufficient to permit a conclusion that the disciplinary actions taken against her were in retaliation for her exercise of rights protected by the First Amendment, Defendants’ motion for summary judgment on the § 1983 claims contained in Counts Two and Six of Plaintiffs Amended Complaint will be denied.
V.
Related to Plaintiffs § 1983 claim is her claim that the adverse actions against her were taken in violation of the anti-retaliation provisions of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12(d).
The retaliation provision of the LAD states that it is an unlawful employment practice for “any person to take reprisals against any person because he has opposed any practices or acts forbidden under this act or because he has filed a complaint....”
Id.
To state a claim for retaliation under this provision, a plaintiff must show that: (1) he or she engaged in protected conduct known to the defendant; (2) he or she was subjected to an adverse employment decision; and (3) there was a “causal link” between the protected activi
*473
ty and the adverse decision.
Shepherd v. Hunterdon Developmental Center,
As this Court has noted, this burden-shifting approach is virtually identical to that employed for federal claims under Title VII.
Ferraro,
There is no question that Plaintiff has satisfied the first two elements of her claim. First, the conduct alleged by Mar-rero, if proven, violated the Law Against Discrimination. In
Drinkwater v. Union Carbide Corp.,
the Third Circuit recognized that it is the plaintiffs belief, not the merits of her claim, that determines whether an employee’s conduct is protected.
Second, although the definition of “adverse employment action” under the LAD and Title VII differs from the broader definition applicable to First Amendment claims, it is clear that Plaintiffs discharge satisfies the adversity requirement. In order to constitute “adverse employment action” for the purposes of the LAD, “retaliatory conduct must affect adversely the terms, conditions, or privileges of the plaintiffs employment or limit, segregate or classify the plaintiff in a way which would tend to deprive her of employment opportunities or otherwise affect her status as an employee.”
Hurley v. Atlantic City Police Department,
As to the causation element, Defendants correctly point out that the Third Circuit has stated that “the mere fact that adverse employment action occurs after a complaint will ordinarily be insufficient to satisfy the plaintiffs burden of demonstrating a causal link between the two events.”
Krouse v. American Sterilizer,
While the timeline evidence in this case may, in fact, be “unusually suggestive” of a retaliatory motive, such a finding need not be made, as “case law has clearly allowed a plaintiff to substantiate a causal connection for purposes of the prima facie case through other types of circumstantial evidence.” Farrell, 206 F.3d at 281. As the Court in Farrell noted, the “it is causation, not temporal proximity or evidence of antagonism that is an element of plaintiffs ... case.” Id.
While Defendants quote the language above to support their contentions, the fact is that
Kachmar
and
Farrell
made it easier, not more difficult, for a plaintiff to satisfy the causation requirement of a statutory retaliation claim. In deciding the issue of causation, a court must examine all of the evidence offered by a party, not just those pieces that relate to temporal proximity or patterns of antagonism. As the Third Circuit noted in
Andrews v. City of Philadelphia,
“a play cannot be understood on the basis of some of its scenes, but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario.”
With Plaintiffs prima facie case established, the burden shifts to the Defendants to offer a legitimate, non-retaliatory explanation for their actions. Once such a reason is offered, the Plaintiff must then show that the offered reasons are pretextual.
The Board contends that it simply enforсed its “long-standing” dress code policy against Plaintiff and then fired her for violating its statutorily-authorized excessive absence policy. (Def. Br. at 14, 19). This statement is sufficient, as Plaintiff recognizes, to satisfy the Defendants’ burden under
McDonnell Douglas.
Accordingly, Plaintiff must submit evidence
*475
that either 1) “casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a fact finder could reasonably conclude that each reason was fabrication”; or 2) “allows the fact finder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.”
Sheridan v. E.I. DuPont de Nemours and Co.,
Under
Fuentes,
a plaintiffs evidence casts sufficient doubt on a defendant’s articulated justifications where it demonstrates “such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.”
Fuentes’ second prong is met where a plaintiff “pointfs] to evidence that proves ... discrimination in the same way that critical facts are generally proved-based solely on the natural probative force of the evidence.”
Keller v. Orix Credit Alliance,
*476 Accordingly, Defendants’ Motion for Summary Judgment as to Plaintiffs LAD retaliations claims (contained in Counts Two and Six of the Amended Complaint) is denied.
VI.
Plaintiff claims “gender-based discrimination as a result of the application of the dress code policy pre-dating plaintiffs termination.”
14
(Pl. Br. at 39). Under the LAD, an employer may not discriminate on the basis of sex in the “terms, conditions or privileges of employment”. N.J.S.A. 10:5-12(a) (West Supp.2001). Since Plaintiff alleges that Defendants’ asserted justifications are pretext, her claim should be analyzed under the burden-shifting approach of
McDonnell Douglas
and
Texas Department of Community Affairs v. Burdine,
As the Third Circuit has stated, the heart of any discrimination claim is “always whether the employer is treating some people less favorably than others because of their race, color, religion, sex or national origin.”
Pivirotto v. Innovative Systems, Inc.,
Plaintiff states that “the problem with the defendants’ dress code is that it’s too subjective and not fairly applied across the board.” (Pl. Br. at 40). While this may in fact be true, the unfair application of an employer’s policy does not rise to the level of actionable gender discrimination unless that unfairness is related to gender.
See, e.g., Bellisimo v. Westinghouse Electric Corp.,
The same evidence upon which Plaintiff relies for her retaliation claims, that other women dressed “virtually the same” yet were not disciplined (Pl. Br. at 36), undermines her contention that gender was a motivating factor in Defendants’ decision-making. While Plaintiff cites the deposition testimony of several of her female coworkers as evidence for her claims, a review of this testimony reveals that the primary objections of Plaintiff and her coworkers were that Plaintiff alone, and no one else, male or female, was targeted for *477 enforcement of the dress code. (See 1/15/98 Pl. Ltr. To Dir. Ellis; Walker Rice Dep. at 12; Tazewell Dep. at 76:23-35).
Much of the evidence provided by Plaintiff focuses on the fact that most of the Board’s own discussions of the dress code policy focused on the policy for women while ignoring the issue of men’s attire. This evidence, without more, does little to bolster Plaintiffs case. As noted in
Bellis-simo
(the only case that Plaintiff cites to support her position), dress code standards may differ for men and women without violating Title VII.
Finally, it should be noted that the evidence in this case does indicate that the dress code was, on occasion, enforced against male employees. As noted by the Third Circuit, because “Title VII [and the LAD] prohibit only discrimination ... consideration of the practices of an employer toward the plaintiff must be evaluated in light of its practices toward the allegedly more favored group, in this case males.”
Ezold v. Wolf, Block, Schorr and Solis-Cohen,
As a number of courts have recognized, an employer has a valid interest in regulating the image that its employees present to the public.
See Bellissimo,
at 181;
Fagan v. National Cash Register Co.,
VII.
The final claim that must be addressed is that Defendants committed the torts of intentional interference with prospective economic advantage and intentional infliction of emotional distress.
*478 A.
Under New Jersey law, it is a “fundamental” element of a claim for intentional interference with prospective economic advantage that the claim be directed against defendants who are not parties to the underlying contractual or economic relationship.
Printing Mart-Morristown v. Sharp Electronics Corp.,
Defendants argue that because Defendants Ellis, Carney and Mayers were employees of the Board, Plaintiffs claims against them must be similarly dismissed. Although the Court agrees with this ultimate conclusion, the analysis is somewhat more complex than Defendants suggest. As the
Printing Mart-Morristown
Court noted, “the fact that an independent cause of action for tortious interference cannot exist against [an employer] does not answer the question of whether employees ... can be held liable for tortious interference with a relationship ... to which [their employer] was a party.”
Plaintiff has made no specific allegations that Defendants were, at any time, acting outside the scope of their employment or for their own personal gain. Although Defendants were allegedly moved by a retaliatory motive in discharging Plaintiff, they were certainly'- within the scope of their respective positions when they acted. Defendants were clearly exercising the official authority delegated to them by the regulations and policies of the Board, the County and the State of New Jersey when they initiated and conducted formal disciplinary proceedings against Plaintiff. The fact that they were acting with an allegedly improper motive does not remove their actions from the scope of their employmеnt.
See Emerson,
Furthermore, as this Court noted in
Hurley
and
Fioriglio,
the New Jersey Supreme Court in
Printing Mart-Marris-toim
seemed to believe that a new cause of action would be required in order for a plaintiff to proceed with a tortious interference claim against a party’s employee.
Fioriglio,
at 393;
Hurley,
at *13-14. Such a cause of action has not since been created and “it is not the role of this court to create new actions under New Jersey law.”
Fioriglio
at 393 (citing
Bathgate,
B.
In addition, Plaintiff alleges that Defendants’ actions constituted intentional infliction of emotional distress. To prevail on such a claim, Plaintiff must prove conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and intolerable in a civilized society.”
Buckley v. Trenton Saving Fund Soc.,
It has been noted that “the limited scope of this tort tolerates many kinds of unjust, unfair and unkind conduct.”
Fregara v. Jet Aviation Business Jets,
Plaintiffs claim (one imagines, as she does not address the merits of this issue in her response) is that the Defendants’ retaliatory conduct, combined with what she describes as a pattern of harassment, constituted extreme and outrageous behavior. However, the mere fact that the Defendants acted for an improper purpose does not give rise to an actionable claim. See Restatement (Second) of Torts, § 46, comment d (“It is not enough that the defendant acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice’ .... ”).
The courts of this District have recognized that allegations of sexual harassment, discrimination, or improperly motivated discharge, cannot alone provide the basis for an intentional infliction of emotional distress claim.
Horvath v. Rimtec Corp.,
A comparison of this case with others that have been decided by this Court and others in New Jersey and the Third Circuit reveals the shortcomings of Plaintiffs claim. For instance, in
Ferraro,
this Court found that plaintiffs claims of sexual harassment, discrimination, name-calling and physical intimidation did not establish a claim for intentional infliction of emotional distress.
In contrast to these cases (and Plaintiffs case) stands the New Jersey Supreme Court’s recent decision in
Taylor v. Metzger,
VIII.
For the reasons set forth above, Defendants’ motion for summary judgment is *481 granted in part and denied in part. The Court will issue an appropriate order.
Notes
. Plaintiff also asserts claims under the New Jersey Constitution against the Board and Defendants Carney, Ellis and Mayers and tort claims against Defendant Junious Coles, a coworker. However, Defendants’ motion does not seek summary judgment on any of those claims.
. On this occasion, Plaintiff was instructed to leave work and to change her clothing before returning. Plaintiff states that she was not paid for this time out of the office. This was the manner in which each of Plaintiff's subsequent dress code violations were addressed by the Board.
. According to Plaintiff, on May 17, 1999, Defendant Coles, a co-worker and former boyfriend, exposed himself to her in the parking lot outside the Social Services building. While Plaintiff originally contended that this event was the result of the hostile environment created by Defendants Ellis, Carney and Mayers, she concedes in her brief that Coles' actions were "personally motivatеd” and occurred outside of work. (Pl. Br. at 41).
. Plaintiff states in her brief that she was sent home on July 21, 2000. However, the portions of her deposition provided to the Court do not specify the exact date. It should also be noted that Plaintiff refers to her own longhand notes relating to that day's events, but has not provided the Court with copies, although it appears that she intended to.
. Although this handbook was promulgated in September, 2000, after Plaintiff had been let go, it appears that the provisions contained therein relating to sick leave had not changed from those in effect during Plaintiff’s employment.
. An employer's duty to afford an employee the protections of the FMLA begins as soon as "the employee provides the employer with enough information to put the employer on notice that FMLA-qualified leave is needed.”
Stoops
v.
One Call Communications,
.Section 825.305 also provides that the fifteen-day deadline must be extended if notice within fifteen days is not practicable given the circumstances. However, the Board's policy and the CBA provide no such flexibility.
. Plaintiff did provide the Board with “information” relatively quickly. According to Plaintiff, during her June 27th conversation with Clement Carney, she requested that the Board’s sick leave forms be sent to her. Carney allegedly responded by saying that Plaintiff's sick leave was denied and that “we are sending you no forms.” (Pl. Notes, Ex. T of Pl. Stmt. Of Mat. Facts). On July 5, Plaintiff submitted a note to Director Ellis stating that her doctor had placed her on sick leave and attaching (somewhat) completed disability forms that had been given her by Dr. McDer-mott. These forms did provide information as to the nature of Plaintiff’s condition. (PL Ex.V). As noted above, for the purpose of this motion, Plaintiff's June 27th phone calls to Defendants Tucker and Carney were sufficient to satisfy the requirements of the FMLA. Therefore, critical issue is whether Plaintiff complied with the requirements of the FMLA in providing a doctor's certification.
. As noted above, this issue (dealing with the sufficiency of Defendants’ notice to Plaintiff of her obligations under the Act) should generally be decided by a jury.
. It should also be noted that the Third Circuit held, in
Azzaro v. County of Allegheny,
. Defendants may, of course, offer evidence at trial that Ellis did not, in fact, possess final *472 policymaldng authority. Likewise, Plaintiff may offer evidence that another of the Defendants possessed final authority in one of the areas at issue. At this stage, however, the evidence points to Ellis and therefore summary judgment on this issue is not warranted.
. In
Fuentes,
the Court noted that "a decision foolish, imprudent, or incompetent by comparison to the employer’s usual mode of operation can render it implausible, inconsistent, contradictory or weak.”
. Although the second
Fuentes
prong basically relies on the same evidence used to establish the plaintiff’s prima facie case, The Third Circuit has recognized, on numerous occasions and "almost in passing”, that “nothing about the
McDonnell Douglas
formula requires [a court] to ration the evidence between one stage or the other.”
Farrell
at 286. See
also, Iadimarco v. Runyon,
. As Defendants point out, Plaintiff's claims in this area are unclear. In her Amended Complaint, Plaintiff claimed that she was "forced to work in a hostile work environment based upon her sex and based upon sexual harassment.” (Am. Compl. at 6). However, in opposing summary judgment, Plaintiff states explicitly that "a hostile work environment based upon sexual harassment is not asserted.” (Pl. Br. at 39). Accordingly, Plaintiff's claim will be analyzed solely as one alleging disparate treatment.