OPINION OF THE COURT
RENDELL, Circuit Judge.
Gertrude Abramson appeals the summary judgment granted to her former employer, William Paterson College ("WPC"),
Most of the underlying facts are undisputed. Where there is a dispute, we view the facts in the light most favorable to the plaintiff. Drinkwater v. Union Carbide Corp., 904 F.2d 853, 854 n. 1 (3d Cir.1990). WPC hired Abramson, an Orthodox Jew, for one year as a tenure-track Associate Professor, effective September 1, 1990.
At the start of her first year at WPC, Abramson informed her Department Chair, Jim Peer, that she would not be able to teach on Jewish holidays. He suggested that she work out her schedule with her students, which she did, and the days she missed on account of Jewish holidays were not counted as sick days. App. at 134-35.
The Review Process
As part of WPC's written policies and procedures regarding retention and tenure, an untenured professor's academic performance was to be reviewed on an annual basis. New Jersey state law does not allow a state college to offer tenure to a faculty member upon appointment, but does permit it to offer tenure to a professor after two years of employment upon a showing of extraordinary circumstances. N.J. Stat. Ann. § 18A:60-9 (West 1993). Barring exceptional circumstances, an untenured faculty member must serve five years before being considered in the fifth year for an award of tenure made effective in his or her sixth year of employment. Id. at § 18A:60-8.
Retention and tenure decisions in Abramson's department are first considered by the Curriculum and Instruction Retention Committee ("the Committee"). The criteria used to determine retention and tenure, as set forth in WPC's written retention policy, are as follows: (1) professional performance; (2) professional growth; and (3) potential contributions to the academic department and the University in terms of present and future programs. The Department Chair is an ex-officio member of the Committee. Though not a voting member, the Chair does choose whether or not to sign the Committee's recommendation. App. at 707. By not signing a recommendation, the Chair indicates a lack of support for the Committee's evaluation. App. at 708. The Dean then makes a recommendation to the Provost. Finally, the President of WPC makes a determination whether or not to recommend retention (or tenure, where applicable) to the Board of Trustees. The WPC Board of Trustees then decides whether to retain and/or grant tenure based on the recommendation of the President.
Abramson's First Two Years at WPC
Abramson's first "annual" review occurred shortly after she began teaching at WPC, and on November 7, 1990, the Committee "strongly" recommended the retention of Abramson for the 1991-92 academic year. App. at 203. The Committee applauded her teaching, scholarly achievement and service, and noted Abramson's ability to teach many C & I courses, opining that "[t]his flexibility makes her most valuable for future planning." Id. It went on to say that the C & I Department "has long been in need of just such expertise as Professor Abramson brings ... [WPC] stand[s] to benefit from her work as a teacher and scholar." Id.
In the fall of 1991, during Abramson's second year at WPC, Nancy Seminoff became the Dean of WPC's School of Education, and in October 1991, she appointed Shelley Wepner to chair the C & I Department.
Abramson's Third Year at WPC
During Abramson's third year, she began to experience difficulties. First, Abramson was charged for sick days for each day of work she missed due to Jewish holidays, despite the fact that WPC was closed on several Christian holidays. App. at 13, 135, 159. In June 1992, after Abramson submitted routine forms in connection with a professional conference she would be attending during that summer, Seminoff required Abramson to meet with her to account for the number of conferences and absences in the prior year. Linda Dye, the head of the faculty union, stated that this was "unprecedented" in a situation where a professor's absences had not exceeded the standards set by Human Resources. App. at 157-58.
In addition, Abramson was charged a day of sick leave for a Jewish holiday on October 20, 1992, when she was not even scheduled to teach. App. at 250, 677. After protesting orally and in writing, this error was corrected six months later. App. at 685. Then, in November 1992, during a C & I Department meeting called to plan the 1993-94 class schedules, Abramson stated her intention to schedule her classes so that they did not conflict with the fall Jewish holidays. According to Abramson, "Wepner started to scream that she was tired of hearing about [Abramson] and [her] holidays; when [Abramson] quietly tried to explain [her]self, Chair Wepner yelled that [Abramson's] holidays were ... personal private issues and that she did not want them mentioned at the scheduling meetings." App. at 137.
During the fall of 1992, at a Technology Committee meeting chaired by Seminoff, Wepner suggested that Abramson, along with others, come in on a Saturday to prepare a technology room. Wepner, who is Jewish herself, made this suggestion while fully aware that Abramson does not work on Saturdays. Abramson told the group that she could not attend because of the Jewish Sabbath.
On October 12, 1992, the Committee once again recommended Abramson for retention for the 1993-94 school year. The evaluation highlighted the "dynamic" nature of Abramson's discipline, described her as a "caring educator" and "reflective teacher," noted she engaged in a "wide range of scholarly activity" and was "active in several national conferences in her field." App. at 225-28. This time, however, the Committee's evaluation noted some "minor concern about her teaching performance and her contribution to department activities...." App. at 231. However, it also "recognized her numerous scholarly pursuits and professional contributions" and recommended her retention "in light
On October 22, 1992, Abramson wrote a seven-page letter to President Speert, stating that she took "strong exception to the negative tenor and substance of the recommendations made for [her] retention by[her] department and Dean Seminoff." App. at 1253. She went on to write, "I have lived as an Orthodox Jew all my life.... The non-discrimination policy of William Paterson College precludes the need to defend either religious observances or pursuit of career goals." Id. Abramson attached the July 12, 1992 letter she had sent to Seminoff in response to the Dean's request for an explanation of her absences. App. at 1261. She received no response from Speert, and she has asserted that his demeanor toward her changed dramatically after that. Instead of being friendly as he was previously, he "stopped speaking to [her] and would turn on his heel and walk away from [her] if [they] happened to meet on campus." App. at 140. On October 30, 1992, President Speert informed Abramson that he intended to recommend her for retention for a fourth year. App. at 931.
In a March 1993 meeting, Wepner scheduled an annual C & I Department lunch for May on a Jewish holiday, even after Abramson informed her she could not attend. App. at 137. On April 1, 1993, Wepner's secretary commented to Abramson, in the presence of Wepner, that "other faculty members are complaining about the way your religious absences inconvenience them"; Wepner did not comment. Id.
On April 27, 1993, Abramson sent a letter to Speert, the Provost, her union representative, the Chair of the Faculty Senate, and the entire Board of Trustees. App. at 939. She attached the letter she had written to Seminoff after their meeting on March 23, 1993, a meeting that Abramson said was another event in a series of "continued and unwarranted negativism toward [her]." App. at 940. The attached letter refuted Seminoff's suggestions and criticisms regarding Abramson's teaching, leadership, professionalism, and collegiality, and said it was written to "counter the negative `facts' [Seminoff] continue[d] to disseminate about [her]." App. at 939. The letter accused Seminoff of having "ill-concealed hostility" toward Abramson and of having a management style that "stifles collegiality, deprives the departments and the college of faculty creativity ... and reduces innovative and effective teaching." App. at 947. Abramson testified in her deposition that this letter was sent to "challenge the judgment of the Dean." App. at 1070.
On April 28, 1993, Provost Smith wrote a letter to Abramson stating that it was highly unprofessional for her to circulate such a letter so widely. App. at 1072-73. Abramson, however, continued to circulate letters that were harshly critical of Dean Seminoff. On June 7, 1993, she wrote a letter to Seminoff attacking her for "applying an administrative style that is autocratic and confrontational and is based upon an outmoded, discredited, paternalistic, approach to management." App. at 1076-77. Abramson's letter added, "I have not seen any substantive evidence that you are a constructive administrator." App. at 1077. Abramson sent copies to Speert and Provost Smith.
Final Review for Retention
On September 20, 1993, five out of seven members of the Committee voted to recommend Abramson's retention for a fifth year, and for her early tenure. The Committee's report stated the following:
App. at 234-38. The Committee also noted that Abramson had an outstanding publication and speaking record, and served on many university committees. It stated that she had "restructured and expanded the graduate concentration in technology education...." App. at 239. It also discussed the future goals of the institution with respect to her field of expertise, finding that she was in a position to help WPC attain those goals. It stressed Abramson's networking abilities and her status as a "nationally recognized leader in her field," calling her "a valuable resource and an asset to the College." Id.
The two other voting members of the committee, Aitken and Coletta, were not present at the meeting. Wepner was also absent. On September 23, 1993, Aitken, Coletta and Wepner appended comments to the Committee's recommendation. Aitken wrote that she had "reservations regarding the [C]ommittee's recommendation," while Coletta and Wepner noted that they did "not agree with the Committee's recommendation." App. at 974.
Seminoff then wrote a memorandum to the Provost, stating that she did not recommend Abramson's retention. She cited concerns with three of the four applicable criteria for retention and tenure — teaching, research/scholarly activity and service. App. at 975. Speert then undertook an analysis of Abramson's retention folder.
On September 22, 1993, Abramson wrote a letter to Robie Cagnina, WPC's Affirmative Action Officer, stating in part: "This is the ... third [year] in which religious discrimination has been directed at me. I am being subjected to bias, discriminatory treatment, harrassment [sic], and outright hatred because I live as an Orthodox Jew." App. at 311. At the bottom of the letter, Cagnina wrote the following: "September 22, 1993 Met with Dr. Abramson regarding this issue; discussed options for the filing of a complaint. Choice was to file with the Division of Civil Rights. RSC" Id.
Abramson then went through an appeals process, but Speert reached the same conclusion once again. In his deposition, he explained his reasons for not retaining Abramson. Speert said that the main reason was that the retention folder presented to him contained evidence of her inability to take leadership and guidance. App. at 1098. He clarified that the referred-to evidence involved issues related both to grants and to the accreditation visit by the National Council on the Accreditation of Teachers of Education ("NCATE").
Other Evidence Offered
Abramson also offered affidavits from several WPC faculty members. The affidavit of Linda Dye, WPC professor and president of the faculty union from 1993-94, supported many of Abramson's allegations. She stated that Speert had refused to say at Abramson's appeal meeting why she was terminated, App. at 159, and also that the reasons given by WPC could all be refuted, App. at 160-61. She declared the following:
App. at 156-57.
The affidavit of Stanley Wollock, a tenured professor in Abramson's department, noted that Friday afternoon meetings were changed because "Wepner was aware that Professor Abramson was unable to attend ... because of her observance of the Jewish Sabbath." App. at 163. He also recounted that Wepner had stated that Abramson "would not be fulfilling her duties" if she did not attend the faculty meetings. App. at 164. In addition, he noted that Dean Seminoff said "you people" to Abramson more than once and treated her "much more harshly than she treated other faculty members." Id. According to his observations, he believed the Dean's dislike of Abramson was based on her religion. App. at 165.
Doris White, a tenured professor in Abramson's department who was a member of the Retention and Tenure Committee in the Fall of 1993, stated, "Dean Seminoff was prejudiced against Jews," assigning both Abramson and another untenured Jewish faculty member to work on many Friday nights, though White was never asked to teach on a Friday night. App. at 168. She also declared that faculty meetings were only scheduled on Fridays while Abramson was in the C & I Department. Id. Additionally, White stated that Abramson had more technological expertise and had published more than the rest of the faculty in the C & I Department. App. at 167.
Finally, Abramson submitted the declaration of her former colleague, Cordelia Towney. Abramson and Towney had both been on the faculty at a different college earlier in their careers, and had worked on a book together while Abramson worked at WPC. WPC had also employed Towney for one semester. Towney stated that "[t]he religious harassment which [Abramson] suffered at WPC made her feel like a beaten puppy. She became sallow, stooped, [and] she looked broken." App. at 174.
In addition to these declarations and her own affidavit, Abramson submitted a Post It note written by Wepner that was contained in Abramson's file. App. at 445. The note said, "If you are dealing with grad program teachers — work all day — Logical for any working class college to have conferences on Sat[urday] — needs of institution conflict with her practicing religion — go. Conferences on Saturday to deal." Id. Abramson also introduced into evidence extremely positive student evaluations she had received during the 1992-93 academic year, faculty evaluation forms completed between April 1992 and May 1993 praising her work,
B. Procedural History
On November 3, 1993, Abramson filed a complaint of employment discrimination with both the Equal Employment Opportunity Commission ("EEOC") and the New
The District Court delivered its summary judgment ruling from the bench on December 10, 1999, disposing of the issues raised in a lengthy oral opinion that was interspersed with dialogue between the Court and counsel. The Court entered its order on December 14, 1999, granting summary judgment in favor of WPC on all claims. In its oral opinion, the District Court briefly considered Abramson's hostile work environment claim, rejecting it because it found that Abramson did not present evidence that would satisfy the prima facie case. The Court focused primarily on Abramson's failure to make out the first element of the prima facie case: intentional discrimination on the basis of religion. In its view, there were too many other explanations for Wepner's conduct, making the religious animus explanation unreasonable. Dist. Ct. Op. at 78-79. Furthermore, it stated that the "same evidence works for both" discrimination and hostile work environment claims, and indicated it was considering Abramson's inability to prove pretext in its analysis of her hostile work environment claim. Id. at 77-78. Overall, it found that "at best, [Abramson] raises a scintilla of evidence." Id. at 83.
The vast majority of the District Court opinion addressed Abramson's religious discrimination claim. The District Court was unpersuaded by the evidence relied on by Abramson to support her claim, though it did not refer at all to the declarations submitted by Abramson's fellow professors. It stated that because the Committee voted to grant Abramson tenure, the focus of the inquiry should be on whether President Speert failed to make a tenure decision because of discriminatory animus. It found that there was no evidence of such animus. Id. at 81-82. The Court held that "at best [Abramson] raises a scintilla of evidence in the overall inquiry, by virtue of what the record reveals concerning the mind of Shelly Wepner." Id. at 83. In addition, the Court found that Abramson had failed to establish that WPC's reasons for terminating her were pretextual. Id.
The District Court dismissed the comments made about Abramson's religion as "stray remarks." Id. at 30. The Court opined that there was a lack of evidence that people acted negatively toward Abramson because of her religious absences. Id. at 58-59. The Court expressed its belief that Wepner was "hotheaded" and that her bad treatment of Abramson was unrelated to religion. Id. at 59-60, 78.
The District Court then examined Wepner's statement to Abramson ("The trouble with you is that it doesn't show that you are Orthodox.") at length, acknowledging that it sounded "angry" and "confrontative" [sic]. Id. at 52. However, after reading Wepner's deposition, the Court "gleaned from that a position that [Wepner] as a Jew has, which is that she felt that her own religious practices were down-played [sic] and low-keyed by her, as a matter of her dealing with the issue of possible Antisemitism...." Id. at 53. The District Court asked whether or not Wepner's remark, "standing alone ... establishes a religious bias," and found that "[t]here's just no way I find for someone to hear Shelly Wepner's remark and draw
The District Court then addressed Wepner's Post-It as a "stand-alone document to give us a vision of Shelly Wepner's mind-set [sic] with respect to Abramson." Id. The Court was persuaded that the note "establishes even more strongly that Wepner moved from a difference of opinion with plaintiff regarding the practice of her religion and broadened that in her mind to a conclusion that ... Abramson was not ... going to meet the needs of the institution." Id. at 56. However, the Court found that Abramson had failed to show the requisite nexus between Wepner's Post It and WPC's decision not to retain her because it was "not contextually established where, when and how this Post-[I]t played a role in anything other than Wepner's own dossier regarding the plaintiff." Id. Although the Court noted that it was possible that Wepner somehow influenced Speert, it found that a possibility was insufficient: "there has to be proof of a determinative factor, i.e. factor of discrimination. Not the possibility." Id. at 57.
The District Court was similarly unconvinced that Abramson's absence from Friday faculty meetings affected her job performance, and it also rejected the argument that the rescheduling of faculty meetings was done in an effort to harass Abramson or to discriminate against her. Furthermore, the Court did not believe that Seminoff's request that Abramson account for her absences was related to religion. It ascribed her being charged with a sick day on a Jewish holiday when she was not scheduled to teach, and the six-month delay in correcting it, to "administrative and bureaucratic bumbling." Id. at 69. The Court stated that it was considering the record as a whole, and in doing so, it found that Abramson did not disprove the legitimate nondiscriminatory reason WPC gave for not retaining Abramson. Id. at 83.
In rejecting Abramson's retaliation claim, the District Court held Abramson did not give "a clear enough indication that she was raising religious discrimination as an issue." Id. at 76. The Court considered only Speert's alleged change in demeanor when evaluating the adverse employment action prong of the retaliatory inquiry, and held that "whatever Speert did or didn't do with respect to friendliness would call for rank speculation on the part of the jury, if that jury was asked to say or to find that there was retaliation." Id. The District Court did not consider Abramson's ultimate termination as an adverse employment action.
Abramson appeals, arguing that the District Court erred in dismissing her Title VII and NJLAD religious discrimination, hostile work environment, and retaliation claims. She argues that she established a prima facie case for each of her claims. First, she argues that she has recounted sufficient proof of all elements of the prima facie case required for a hostile work environment claim. With respect to her religious discrimination claim, Abramson stresses that she submitted ample evidence that her supervisors were motivated by discriminatory animus stemming from her insistence that she be allowed to practice her Orthodox Jewish beliefs. She also argues that she presented credible evidence that WPC's reasons for terminating her were pretextual. With regard to her retaliation claim, Abramson contends that the record clearly reflects that she made her
The District Court had subject matter jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1343, and supplemental jurisdiction under 28 U.S.C. § 1367. We have appellate jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court's grant of summary judgment to WPC, and we apply the same standard that the District Court should have applied. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir.2000). A court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In evaluating the evidence, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Farrell, 206 F.3d at 278. While the individual pieces of evidence alone may not suffice to make out the claims asserted, we must view the record as a whole picture. Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3d Cir.1997). As we stated in Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3d Cir.1990), "A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario."
A. Hostile Work Environment
Abramson's first claim is that she was subjected to a hostile work environment based on her religion. To make out a prima facie case for a religiously hostile work environment
Under the NJLAD, a plaintiff states a claim for a religiously hostile work environment by showing that the "complained-of conduct (1) would not have occurred but for the employee's [religion]; and it was (2) severe or pervasive enough to make a (3) reasonable [Orthodox Jew] believe that (4) the conditions of employment were altered and the working environment was hostile or abusive." Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 114 (3d Cir.1999), cert. denied, 528 U.S. 1074, 120 S.Ct. 786, 145 L.Ed.2d 663 (2000) (quoting Lehmann v. Toys R Us, Inc., 132 N.J. 587, 626 A.2d 445, 453 (N.J. 1993)).
The District Court rejected Abramson's religiously hostile work environment claims under both statutes, finding that the conduct alleged did not meet the requirements of the prima facie case. Dist. Ct. Op. at 78. Though it referred to all of the first four prongs of the test, the Court seemed to base its holding almost exclusively on Abramson's failure to meet the first prong, viewing that prong as involving the perception of a "reasonable person of the protected status" and requiring a discriminatory "animus." We disagree with this approach.
The proper inquiry at this stage was whether a reasonable factfinder could view the evidence as showing that Abramson's treatment was attributable to her religious faith and practice. Further, by asking whether a reasonable person would "necessarily construe" the conduct in question as being improperly motivated, the District Court appears to have viewed the evidence in the light most favorable to the party making, not the party opposing, the summary judgment motion. See Howley v. Town of Stratford, 217 F.3d 141, 151 (2d Cir.2000) ("It is not the province of the court itself to decide what inferences should be drawn.").
By requiring that Wepner's conduct be "linked" to a "discriminatory animus,"
523 U.S. at 80-81, 118 S.Ct. 998. Similarly, we have never required a plaintiff to demonstrate direct proof that her harasser's intent was to create a discriminatory environment. Instead, we have held that, with respect to certain conduct, the intent to discriminate can be inferred. Andrews, 895 F.2d at 1482 n. 3 (referring to sexual misconduct). We have also noted that because discrimination is "often simply masked in more subtle forms," it is often difficult to discern discriminatory animus. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir.1996); see also Iadimarco v. Runyon, 190 F.3d 151, 157 (3d Cir.1999) ("The Supreme Court has recognized that an employer who discriminates will almost never announce a discriminatory animus or provide employees or courts with direct evidence of discriminatory intent."). Thus, we have held that even the use of "code words" such as "all of you" and "one of them" could be sufficient evidence from which a jury could find an intent to discriminate. See Aman, 85 F.3d at 1083 ("The words themselves are only relevant for what they reveal-the intent of the speaker."); see also Howley, 217 F.3d at 145, 148, 154-55 (finding hostile work environment claim on basis of sex viable where conduct at issue, though lacking any sexual component or reference to plaintiff's sex, could, in context, reasonably be interpreted as having been directed at plaintiff because of sex).
The first prong of the Andrews test was not designed to protect harassers who fail to recognize the hostile or abusive nature of their comments and actions. Our case law does not indicate that the first prong requires a factfinder to peer inside the harasser's mind. Rather, it merely requires a showing that the offender's behavior was, as required by both Title VII and the LAD, based on a protected category. See Spain v. Gallegos, 26 F.3d 439, 447-48 (3d Cir.1994) (noting that though facts before us did not include evidence of "blatantly sexist behavior," plaintiff made out the first element "by showing that gender was a substantial factor in the discrimination" and that plaintiff would not have been treated in the same manner if she were male) (internal quotation marks and citation omitted); Drinkwater, 904 F.2d at 862 ("[E]vidence of a sufficiently oppressive environment could, in theory, give courts enough evidence to infer that the intentional discrimination prong of the Andrews test can be met even absent evidence of the harasser's subjective intent to discriminate.")
Regardless of what a harasser's intention is, if a plaintiff presents sufficient evidence to give rise to an inference of
Turning to the remaining elements of the prima facie case for hostile work environment, we find that the evidence Abramson presented was sufficient to satisfy her burden on the other prongs as well. We conclude that the many incidents recounted by Abramson, coupled with the declarations of other WPC professors, are relevant and probative as to prongs two through four of the prima facie case for hostile work environment claims.
First, a jury could find that the harassment was pervasive. The events alleged occurred over a period of two years and could be found to have infected Abramson's work experience; even other faculty members mentioned it to Speert prior to Abramson's filing suit. App. at 390-91, 513, 540-41. No one event alone stands out from the rest, but all of the events could be found to aggregate to create an environment hostile to a person of Abramson's religion. See Durham Life Ins. Co. v. Evans, 166 F.3d 139, 155 (3d Cir.1999) ("[I]t is settled law that courts
A jury could also reasonably conclude that Abramson was detrimentally affected by the environment, thereby fulfilling the third prong. Abramson's declarations amply support such a finding, as do the three affidavits of her fellow WPC faculty members. In addition, the declaration of Cordelia Towney stated that "[t]he religious harassment which [Abramson] suffered at WPC made her feel like a beaten puppy. She became sallow, stooped, [and] she looked broken." App. at 174.
In determining whether the fourth prong, the objective test, is met,
With respect to the fifth prong of the hostile work environment claim, the existence of respondeat superior liability, a jury could also find that this prong has been met. The Supreme Court crafted the standard for employer liability in Faragher, referred to as the "aided by the agency relation test":
524 U.S. at 807, 118 S.Ct. 2275. Here, it is undisputed that Abramson was terminated. Hence, WPC cannot assert an affirmative defense, and the evidence of liability is clear. Because Abramson presented evidence sufficient to meet all five elements
B. Religious Discrimination Claim
Abramson claims that she was terminated because her supervisors were motivated by discriminatory animus stemming from her insistence that she be allowed to observe her religious holy days. She alleges that WPC's various, allegedly non-discriminatory reasons for terminating her employment were false and pretextual.
Title VII explicitly protects employees from adverse employment actions on the basis of religion: "(a) It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... religion...." 42 U.S.C. § 2000e-2(a). As recognized by our sister circuits, though never explicitly recognized in our own jurisprudence, employees may assert two theories of religious discrimination:
To prove a claim under the "disparate treatment" theory, the prima facie case and evidentiary burdens of an employee alleging religious discrimination mirror those of an employee alleging race or sex discrimination. Chalmers, 101 F.3d at 1017. Accordingly, we apply the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiff must demonstrate that she (1) is a member of a protected class, (2) was qualified and rejected for the position she sought, and (3) nonmembers of the protected
Abramson also asserts a claim of religious discrimination under the NJLAD. In cases alleging disparate treatment, New Jersey courts have adopted a three-step test that mirrors the Title VII inquiry:
Here, the District Court assumed, and the parties did not dispute on appeal, that Abramson met all three requirements of the prima facie case: (1) religion is a protected category under Title VII and Abramson is an Orthodox Jew, (2) she was qualified for the position; and (3) she was terminated while other non-Orthodox Jewish professors were retained. The burden then shifted to WPC to proffer a legitimate, non-discriminatory reason for Abramson's termination. Goosby, 228 F.3d at 319. WPC offered many reasons for its decision. In fact, the reasons presented were ever-changing.
Seminoff wrote that after reviewing Abramson's retention file, she did not recommend Professor Abramson for retention due to concern "regarding the quality of accomplishment in [teaching, research, scholarly activity and service], with particular concern for the area of service." App. at 364. In Speert's memo to Abramson explaining his decision not to recommend her for reappointment, he wrote that her "overall record of contribution to the College and Community and potential contribution to the Department, Program and the College in terms of present and future programs do not justify reappointment." App. at 979. Later, in response to Abramson's discrimination complaint to the NJDCR, WPC claimed she was deficient in the following areas: scholarship and teaching, interpersonal skills during small group discussions, professional service on campus-wide and department committees/activities, and her scholarly record. App. at 404.
Finally, in Speert's deposition, he gave other reasons never previously mentioned, among them that Abramson failed to create a concentration in technology and refused to work with administrators to create an Apple computer lab. When pressed, Speert asserted that the main reason he did not retain Abramson was that the folder that had been presented to him contained evidence of her inability to take leadership and guidance. App. at
The burden shifted to Abramson, who had to "point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994).
In Fuentes, we addressed just how much evidence of pretext a plaintiff needs to avert summary judgment. We held that "to avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext)." Id. (internal citations and emphasis omitted). Importantly, we qualified that statement with the following footnote:
Id., n. 7. We then noted that it is not enough for a plaintiff to show that the employer's decision was wrong or mistaken, because the issue is whether the employer acted with discriminatory animus. Hence, to make a sufficient showing of pretext, Abramson must "demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in WPC's reasons that "a reasonable factfinder could rationally find them `unworthy of credence.'" Id. at 765 (citation omitted). And if Abramson can successfully demonstrate pretext, she need not present affirmative evidence of discrimination beyond her prima facie showing if a rational factfinder could conclude from the evidence of pretext that WPC's actions were discriminatory. Reeves, 530 U.S. at 147, 120 S.Ct. 2097.
WPC's reasons can be grouped into two categories: (1) overall deficiencies in Abramson's scholarship, teaching and service — the explanations given to the NJDCR, which are the same reasons Seminoff cited as the basis for not recommending retention; and (2) Abramson's failure to get along with supervisors and follow instructions, which were the main (though not exclusive) reasons Speert listed at his deposition.
Abramson refutes the first set of reasons by noting that Speert admitted in his deposition that these reasons were unfounded, saying that her folder gave evidence of "very good performance in both areas" of teaching and scholarship, App. at 468, and that her level of service "would not have raised a concern," App. at 498. In addition, WPC admitted at oral argument that these reasons were not the actual
With respect to Abramson's alleged failure to follow instructions insofar as she purportedly did not use proper protocols for proposed grants and programs, she argues that she was unaware of any protocols. App. at 147. She points to Speert's inability to identify at his deposition where the protocols were outlined in either the policy manual or the faculty handbook. App. at 478-79. Abramson presented testimony of the president of the faculty union stating there were not any protocols, App. at 160, and noted WPC's failure to include in the record any documents setting forth such protocols.
Abramson also attacked the legitimacy of WPC's reliance on the fact that she failed to accept leadership from Seminoff and Wepner as grounds for her termination. She argues that because these two women were her alleged harassers, and because her poor relationship with them was directly related to their hostility toward her religion, her difficulty working with them should not be credited as a legitimate, nondiscriminatory reason for her termination. She also submitted evidence of her positive contributions in teaching and scholarship (glowing teaching evaluations, letters to Speert praising her, a fellow professor's declaration), including evidence that she was well-versed in the use of Apple computers and did in fact teach her students how to use them. App. at 132, 174. With respect to her alleged failure to develop the concentration in technology, Abramson points to the specific reference by the Committee to the contrary, presenting evidence that the Committee praised her work in this area. App. at 239. In addition, Abramson focuses on the timing of the reasons, stressing that two technology-related concerns were not mentioned until Speert's deposition.
Abramson also argues that the ever-changing nature of the proffered reasons can be considered as detracting from their legitimacy. We agree. If a plaintiff demonstrates that the reasons given for her termination did not remain consistent, beginning at the time they were proffered and continuing throughout the proceedings, this may be viewed as evidence tending to show pretext, though of course it should be considered in light of the entire record. See Fuentes, 32 F.3d at 765 (listing "inconsistencies" and "contradictions" in employer's reasons among ways plaintiff could show pretext); see also Waddell v. Small Tube Prods., Inc., 799 F.2d 69, 73 (3d Cir.1986) (noting that district court could "appropriately" have taken employer's inconsistent explanations for termination into account in finding causation necessary to satisfy prima facie case of retaliatory discharge).
We find that based on the record as a whole, Abramson has successfully "demonstrate[d] such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" such that "a factfinder could reasonably ... disbelieve the employer's articulated legitimate reasons." Fuentes, 32 F.3d at 765. And as the Supreme Court recently stated in Reeves, this alone could support the inference that WPC's motivation was discriminatory:
530 U.S. at 147-48, 120 S.Ct. 2097 (internal citations omitted).
However, the factfinder does not need to rely on that evidence alone. Abramson has also presented evidence from which a reasonable factfinder could infer that "an invidious discriminatory reason was more likely than not a motivating or determinative cause of [WPC]'s action." Fuentes, 32 F.3d at 764. The confrontations with Seminoff and Wepner, the very probative declarations of Abramson's fellow professors, the laudatory faculty evaluations and Committee report, and Wepner's Post-it note all provide strong evidence to support Abramson's claim.
We note that the District Court appears to have viewed the evidence as a factfinder,
We note, also, that while the District Court relied heavily on the fact that it found no evidence in the record demonstrating that Speert himself possessed discriminatory animus toward Abramson, a rational jury could find that Speert did not make his decision in a vacuum. A reasonable inference that could be drawn from the record is that Speert was influenced by both Seminoff and Wepner. In fact, Speert even stated in his deposition that before making his decision not to retain Abramson, he sought Seminoff's counsel. App. at 487. Moreover, there is an additional piece of evidence not mentioned in the District Court opinion that supports our view of the record on this point. The
Considering the record before us, we find ample evidence to support Abramson's religious discrimination claim.
C. Retaliation Claim
Abramson's third and final claim is for retaliation. To advance a prima facie case of retaliation under Title VII and the NJLAD, a plaintiff must show that: (1) the employee engaged in a protected employee activity;
1) Abramson engaged in protected activity.
On Oct. 22, 1992, Abramson wrote a letter to Speert, stating:
App. at 932. On October 12, 1993, Abramson once again wrote to Speert after Seminoff gave a negative recommendation to the Committee regarding her future employment with WPC.App. at 377. This letter complained that "Dean Seminoff's bias against [Abramson] as an Orthodox Jew overwhelms her professional judgment." Id. In addition to making her complaints known to President Speert, Abramson also complained to WPC's Affirmative Action Officer, Robie Cagnina. On September 22, 1993, Abramson filed a written complaint of religious discrimination with Cagnina, stating: "I am being subjected to bias, discriminatory treatment, harrassment [sic], and outright hatred because I live as an Orthodox Jew." App. at 311.
The District Court determined that Abramson failed to make out the first element, holding that she "did not articulate clearly and in a formal manner a religious discrimination complaint ..." and that her "[October]
Under our precedent, the letters Abramson wrote to Cagnina and Speert fall squarely within the requirements of the first prong of a retaliation claim. We have previously noted in the ADEA context that "we do not require a formal letter of complaint to an employer or the EEOC as the only acceptable indicia of the requisite `protected conduct'...." Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Cir.1995) (citing Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir.1990) (explaining that acceptable forms of protected activity under Title VII's analogous
2) Abramson suffered adverse employment action.
With respect to the second element — i.e., adverse employment action, the District Court only focused on Abramson's claim that Speert treated her differently after she voiced her complaints, rather than considering the more obvious adverse employment action of her termination. We hold that Abramson's termination clearly fulfills the second prong of the prima facie case for a retaliation claim. In addition, Seminoff's recommendation not to retain Abramson would also qualify as an adverse employment action sufficient to meet this element.
3) A causal link exists between the protected activity and the adverse action.
Given that the District Court viewed Speert's change in demeanor as the only adverse action, it dismissed the issue of causation out of hand, stating that it "would call for rank speculation on the part of the jury" to ask it to find retaliation. Dist. Ct. Op. at 76. But because the two instances of adverse action we examine are Seminoff's recommendation not to retain Abramson and Abramson's ultimate termination, the analysis changes significantly.
Based on our case law and the evidence adduced, Abramson has made a sufficient showing of the causal connection required by the third prong of the prima facie case of retaliation. In Farrell, we recognized that our case law has focused on two mainfactors in finding the causal link necessary for retaliation: timing and evidence of ongoing antagonism. 206 F.3d at 281; see also Woodson v. Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir.1997) ("[T]emporal proximity ... is sufficient to establish the causal link.... [A] plaintiff can [also] establish a link between his or her protected behavior and subsequent discharge if the employer engaged in a pattern of antagonism in the intervening period."). Here, it could be argued that the proximity in time between Abramson's last letter to Speert on October 12, 1993, and her being informed Speert would not recommend her for retention on October 25, 1993, is not conclusive because her discharge occurred in accordance with her annual review for retention. However, the timing factor is made more convincing by Cagnina's admission that she called Seminoff after meeting with Abramson in September 1993 and told her that Abramson had "apprised [her] that she believed she had been discriminated against." App. at 770. Seminoff wrote a very negative recommendation against Abramson soon after that phone call from Cagnina.
In any event, we need not rely on timing alone because Abramson has presented additional evidence to prove the causal nexus. First, she has demonstrated ongoing antagonism from her department head and the dean, as we noted in our discussion of the facts above. Further, she introduced
As we stated in Farrell,
206 F.3d at 286. Here, there is ample evidence from which a reasonable jury could draw inferences establishing all three of Abramson's claims. Accordingly, we will REVERSE the District Court's order granting summary judgment in favor of WPC on Abramson's claims of hostile work environment, religious discrimination and retaliation, and REMAND for further proceedings.
ALITO, Circuit Judge, concurring.
I write separately to add a brief explanation of my understanding of the basis for holding that the summary judgment record is sufficient to permit the plaintiff's religious harassment claim to go to trial. Harassment is actionable under Title VII and the New Jersey Law Against Discrimination only if it is so severe or pervasive that it alters the terms or conditions of the plaintiff's employment. See Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Taylor v. Metzger, 152 N.J. 490, 706 A.2d 685, 688-89 (1998). Offensive comments and
The reason is that a reasonable trier of fact could infer that officials of the College intentionally pressured the plaintiff to violate the dictates of her faith in order to keep her job. As the brief of an amicus curiae observes:
Intentionally pressuring a person to choose between faith and career is more "severe" and has a more direct effect on the conditions of employment than the sort of offensive remarks at issue in Heitzman. While case law provides only limited protection for employees whose religious obligations conflict with neutral job requirements, see Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), Title VII does not permit an employer to manipulate job requirements for the purpose of putting an employee to the "cruel choice" between religion and employment. Braunfeld v. Brown, 366 U.S. 599, 616, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961) (Stewart, J., dissenting). It is for this reason, in my view, that the summary judgment record is sufficient to support the plaintiff's religious harassment claim.
We also note that a New Jersey court has also recognized that hostile work environment claims based on religion are cognizable under the NJLAD. See Heitzman v. Monmouth County, 321 N.J.Super. 133, 728 A.2d 297, 303 (App.Div.1999) (discussing plaintiff's claim that he was subjected to hostile work environment because he was Jewish and noting that New Jersey courts have relied upon federal court decisions construing Title VII hostile work environment claims when reviewing such claims under NJLAD).