                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-16-2001

Cardenas v. Massey
Precedential or Non-Precedential:

Docket 00-5225




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Filed October 16, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-5225

GERARD CARDENAS,
       Appellant

v.

JON MASSEY; JAMES REBO; ROBERT LIPSCHER;
JAMES CIANCIA; DEBORAH PORITZ;
STATE OF NEW JERSEY

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 96-cv-04077)
District Judge: Hon. Garrett E. Brown, Jr.

Argued: March 1, 2001

Before: SLOVITER, NYGAARD and ROTH, Circuit Ju dges

(Filed: October 16, 2001)

       Fredric J. Gross (Argued)
       Of Counsel: Susan E. Babb
       Noel C. Crowley
       Mount Ephraim, New Jersey 08059

        Attorneys for Appellant
       John J. Farmer, Jr.
        Attorney General of New Jersey
       Michael J. Haas
        Assistant Attorney General
        Of Counsel
       Patrick Dealmeida
        Deputy Attorney General
        Of Counsel
       George N. Cohen (Argued)
        Deputy Attorney General
        On the Brief
       Trenton, New Jersey 08625

        Attorneys for Appellees

       Jennifer S. Goldstein
       Washington, D.C. 20507

        Attorney for EEOC

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Plaintiff-appellant Gerard Cardenas, a Mexican-American,
was hired as of January 29, 1990 as the manager of the
Office Systems Unit in the Information Systems Division
("ISD") of New Jersey's Administrative Office of the Courts
("AOC") following the retirement of Joseph Ribsam.
Cardenas asserts that through 1989 every manager or
supervisor in the ISD was a white non-Hispanic male.
Appellee James Rebo, head of the ISD, had advertised the
position at pay grades G-32 and G-30. Cardenas was
appointed at the G-30 level. Cardenas resigned on March 1,
1996. On August 23, 1996, he filed this suit against Jon
Massey, his immediate supervisor, and Rebo (individually
and in their official capacities), as well as Robert Lipscher,
Director of the AOC (individually), James Ciancia
(Lipscher's successor, in his official capacity), Deborah
Poritz (New Jersey's Chief Justice, in her official capacity),

                                  2
and the State of New Jersey. The complaint stated
disparate pay, hostile work environment, and retaliation
claims under 42 U.S.C. S 1981, 42 U.S.C. S 2000e, et seq.
("Title VII"), and the New Jersey Law Against Discrimination
("LAD"), N.J. Stat. Ann. S 10:5-1, et seq., and a common law
claim for intentional infliction of emotional distress against
Massey. Essentially, the claims raised in Cardenas' 128
paragraph complaint revolve around his contention that he
was hired at a lower grade level than merited by the work
he was assigned, received disparate pay as a result, was
not promoted as merited, was the subject of retaliation, and
was subject to a hostile work environment, all as a result
of his ethnicity.

After discovery, the defendants moved for summary
judgment and Cardenas moved for partial summary
judgment on his disparate pay claims. The District Court
granted defendants' motion, except as to the LAD and
S 1981 hostile work environment claims against defendant
Massey, and denied Cardenas' motion by opinion dated
December 2, 1999 (hereafter "Dec. 2 opinion"). The court
subsequently denied Cardenas' motion for reargument by
opinion dated February 2, 2000. Cardenas settled his
claims against Massey, resolving the remainder of the
action. He then filed a timely notice of appeal as to the
remaining defendants. On appeal, the EEOC has filed an
amicus curiae brief solely as to the issue of the proper
application of the statute of limitations to disparate pay
claims.

The District Court had jurisdiction over this action under
28 U.S.C. SS 1331, 1343, 1367. This court has appellate
jurisdiction under 28 U.S.C. S 1291.

II.

Cardenas has set forth a litany of incidents from his six
years employment at the AOC that he contends show
discrimination, retaliation, and a hostile work environment.
Our review of the grant of summary judgment is plenary.
See Wheeler v. Towanda Area Sch. Dist., 950 F.2d 128, 129
(3d Cir. 1991).

                                3
Federal Rule of Civil Procedure 56(c) provides for
summary judgment when "there is no genuine issue as to
any material fact and . . . the moving party is entitled to a
judgment as a matter of law." An issue is genuine if "the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In Anderson , the Court
explained that the judge's role when adjudicating a motion
for summary judgment "is not himself to weigh the evidence
and determine the truth of the matter but to determine
whether there is a genuine issue for trial." Id. at 249. In
making this determination, a court is to draw all reasonable
inferences in favor of the non-moving party. See Berner Int'l
Corp. v. Mars Sales Co., 987 F.2d 975, 978 (3d Cir. 1993).
In other words, Rule 56(c) "mandates the entry of summary
judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear the
burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).

III.

Cardenas' disparate pay claims stem, at least in part,
from his initial hiring at the G-30 level. Cardenas contends
that he performed all of the responsibilities of his
predecessor, who was Chief, Office Services Systems, a G-
31, and came to assume additional ones (the "PC/LAN
duties"). He contends that Richard Chelenza, another mid-
level ISD manager, previously had the PC/LAN duties and,
as a result, Chelenza's pay grade had been raised from G-
31 to G-33 at Rebo's request. He claims he resolved LAN
problems caused by inadequate materials supplied to the
AOC by AT&T, negotiating a deal with the company
whereby it replaced over $400,000 of defective materials
and yet he remained at pay level G-30, the grade he held
throughout his six-year tenure at the AOC.1
_________________________________________________________________

1. After June 1994, all AOC managers' salaries were frozen. It is not
clear whether the freeze applied to promotions.

                               4
The District Court recognized that Cardenas asserted
three legal bases for his wage discrimination claim--
S 1981, LAD, and Title VII, and that a separate limitations
period applies to each. Cardenas' S 1981 claims are subject
to a two-year statute of limitations. See Goodman v. Lukens
Steel Co., 482 U.S. 656, 662 (1987); N.J. Stat. Ann.
S 2A:14-2. A two-year statute of limitations also applies to
LAD claims whose "operative facts" occurred after July 27,
1993, whereas LAD claims based on events occurring
before this date are subject to a six-year statute of
limitations. See Martinez v. Nat'l Broadcasting Co., 877 F.
Supp. 219, 230 (D.N.J. 1994); Montells v. Haynes , 133 N.J.
282, 286, 627 A.2d 654, 655 (1993). Title VII claims must
be the subject of a charge filed with the EEOC within either
180 days or 300 days of the complained-of unlawful
employment practice, depending upon whether the state
has an anti-discrimination law, see Miller v. Beneficial
Mgmt. Corp., 977 F.2d 834, 842 (3d Cir. 1992), and a
complaint must be filed in the district court within 90 days
of receipt of a right-to-sue letter from the EEOC, see 42
U.S.C. S 2000e-5(f)(1). The District Court calculated that to
maintain an action for disparate pay based on his pay
grade under Title VII, Cardenas had to file a complaint with
the EEOC on or before July 29, 19902; to maintain a S 1981
action, he had to file his complaint in the district court on
or before January 29, 1992; and to maintain an action
under LAD, he had to file his complaint in the district court
on or before January 29, 1996.

The District Court found that because Cardenas'
disparate pay claims stem from his initial pay grade
classification, they accrued when he began working at the
AOC on January 29, 1990, and are therefore time-barred.
It rejected Cardenas' argument that each paycheck he
received over the course of his AOC employment, which
_________________________________________________________________

2. The court incorrectly believed that under Title VII Cardenas' claims
had to be presented to the EEOC within 180 days of the alleged unlawful
employment practice. In fact, because New Jersey has an anti-
discrimination law, a claim must be presented to the EEOC within 300
days of the alleged unlawful employment practice. See 42 U.S.C.
S 2000e-5(e)(1), construed in Seredinski v. Clifton Precision Prods., 776
F.2d 56, 61-62 (3d Cir. 1985).

                               5
ended on March 1, 1996, constituted a separate
discriminatory act that brought his claims within the
statutes of limitations pursuant to the continuing violations
doctrine. See Miller, 977 F.2d at 842 ("[I]f the alleged
discriminatory conduct is a `continuing violation,' the
statute of limitations begins to run on the date of the last
occurrence of discrimination, rather than the first."). Citing,
inter alia, Lorance v. AT&T Techs., Inc., 490 U.S. 900
(1989), rev'd by the Civil Rights Act of 1991, S 112,
Delaware State Coll. v. Ricks, 449 U.S. 250, 257 (1980),
and United Airlines, Inc. v. Evans, 431 U.S. 553, 560
(1977), the court found the continuing violations doctrine
inapplicable because Cardenas described his pay checks as
"consequences" of his pay grade and did not allege the
AOC's pay-grade structure was facially discriminatory.

We believe that is too narrow a reading of the facts and
the law. In Evans, the discrimination, which was forcing
plaintiff to resign when she married, occurred outside the
statutory period. Although she was rehired within the
statutory period, her seniority was calculated from the date
of her re-hire. The Supreme Court rejected plaintiff 's
argument that this application of the seniority system
constituted a continuing violation because it gave present
effect to the employer's past discriminatory act by
disregarding the seniority she had accrued before her
forced resignation. The Court held that no present violation
existed because the seniority system, its adoption, and its
operation were nondiscriminatory. See Evans, 431 U.S. at
557-60.

In Ricks, the employer College denied the plaintiff
professor tenure and gave him a "terminal" one-year
contract pursuant to College policy. The tenure denial was
outside the statutory period, but plaintiff 's final day of
employment was not, and he argued that his discharge was
a continuing violation. The Court disagreed, finding that it
was "a delayed, but inevitable, consequence of the denial of
tenure. In order for the limitations periods to commence
with the date of discharge, Ricks would have had to allege
and prove that the manner in which his employment was
terminated differed discriminatorily from the manner in
which the College terminated other professors who also had

                               6
been denied tenure." Ricks, 449 U.S. at 257-58. The Court
cited Evans for the proposition that we look not for
continuing effects but for present acts of discrimination. Id.

In Lorance, the plaintiffs were demoted under a facially
neutral seniority system, operated in a non-discriminatory
manner but allegedly adopted with a discriminatory
purpose outside the statutory period. The Court, citing
Evans, Ricks, and the special status of seniority systems in
discrimination law, Lorance, 490 U.S. at 911-12, declined
to apply the continuing violations doctrine, holding that
"[b]ecause the claimed invalidity of the . . . seniority system
is wholly dependent on the alleged illegality of signing the
underlying [collective bargaining] agreement, it is the date
of that signing which governs the limitations period." Id. at
911.

In all three cases, the Supreme Court held there was no
continuing violation where the effects of prior
discriminatory acts, but no actual discrimination, occurred
within the limitations period. The Evans-Ricks-Lorance line
of cases bars claims where the relevant aspect of the
employment system (such as promotion, seniority, or
termination) is facially neutral, and any discrete
discriminatory conduct took place and ceased outside the
period of limitations. As the Lorance Court observed, "[w]ith
a facially neutral system the discriminatory act occurs only
at the time of adoption, for each application is
nondiscriminatory." Id. at 912 n.5. However, this line of
cases does not bar claims based on conduct which is
alleged to have "continued to discriminate unlawfully each
time it was applied." Anderson v. Zubieta, 180 F.3d 329,
336 (D.C. Cir. 1999).

Here, Cardenas alleges the decision not to promote him,
or increase his wage level to one appropriate to his skills,
was made on an ongoing basis. The facially-neutral-system
analysis of Evans, Ricks, and Lorance is thus inapposite. A
more pertinent Supreme Court decision is Bazemore v.
Friday, 478 U.S. 385 (1986), where the Court reversed the
dismissal of a Title VII disparate pay claim on statute of
limitations grounds and held that each of plaintiffs' pay
checks constituted a distinct violation of their right to
nondiscriminatory compensation. The Court stated that the

                               7
limitations defense could not be based on the ground that
the disparities stemmed from discriminatory policies pre-
dating the effective date of Title VII, explaining:

       that the [employer] discriminated with respect to
       salaries prior to the time it was covered by Title VII
       does not excuse perpetuating that discrimination after
       [it] became covered by Title VII. . . . A pattern or
       practice that would have constituted a violation of Title
       VII, but for the fact that the statute had not yet
       become effective, became a violation upon Title VII's
       effective date, and to the extent an employer continued
       to engage in that act or practice, it is liable under that
       statute. . . . Each week's paycheck that delivers less to
       a black than to a similarly situated white is a wrong
       actionable under Title VII, regardless of the fact that this
       pattern was begun prior to the effective date of Title VII.

Bazemore, 478 U.S. at 395-96 (third emphasis added)
(Brennan, J., concurring in part, joined by all members of
the Court).

Thereafter, in Miller v. Beneficial Management Corp., 977
F.2d 834 (3d Cir. 1992), a case brought under the Equal
Pay Act rather than Title VII, this court came to a similar
conclusion. We held that the statute of limitations for an
EPA claim began to run on the date the plaintiff received
her last allegedly discriminatory paycheck. In fact,"[m]ost
courts appear to treat pay discrimination claims as
continuing violations." Miller, 977 F.2d at 843. Certainly, in
this circuit, " `discriminatory wage payments constitute a
continuing violation. . . . To hold otherwise would permit
perpetual wage discrimination by an employer whose
violation . . . had already lasted without attack for [longer
than the limitations period].' " Id. (quoting Hodgson v.
Behrens Drug Co., 475 F.2d 1041, 1050 (5th Cir. 1973)).

The EEOC filed its brief as amicus curiae in this case
because of its view that the District Court erroneously
applied the statute of limitations to Cardenas' Title VII
claim. The EEOC states that "both Bazemore and Miller
contemplate that an individual may challenge allegedly
discriminatory wage payments so long as one such
payment falls within the limitations period." Br. of EEOC at

                                8
14. It further states that "Cardenas received allegedly
discriminatory paychecks within 300 days prior to the filing
of his administrative charge, and so his claim should have
been deemed timely." Id. at 10. The EEOC argues that if the
District Court's opinion is allowed to stand, it"would
frustrate enforcement of Title VII by improperly insulating
current discriminatory conduct from challenge under the
statute." Id. at 1.

In its opinion on Cardenas' request for reargument, the
District Court rejected Cardenas' argument that it had
overlooked the Miller decision. The court first noted that
Cardenas had not cited Miller and then held that Miller was
not controlling because it analyzed the statute of limitations
under the Equal Pay Act whereas Cardenas sued under
Title VII. However, the Supreme Court's opinion in
Bazemore concerns a Title VII claim. Moreover, application
of the continuing violations doctrine is not dependent on
which statute gives rise to the plaintiff 's claim. See
Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 345-51
(4th Cir. 1994) (applying continuing violation theory to both
Title VII and EPA disparate pay claims). Although Miller
may have been brought under a different statute, its
holding is still applicable here. Cf. Miller, 977 F.2d at 843
(relying in part on Hall v. Ledex, Inc., 669 F.2d 397 (6th
Cir. 1982) (Title VII and EPA) and Satz v. I.T.T. Fin. Corp.,
619 F.2d 738 (8th Cir. 1990) (Title VII)). Finally, there are
numerous cases in other circuits that have followed the
Bazemore decision to hold that in a Title VII case claiming
discriminatory pay, the receipt of each paycheck is a
continuing violation. See, e.g., Anderson v. Zubieta, 180
F.3d 329, 335-37 (D.C. Cir. 1999); Ashley v. Boyle's
Famous Corned Beef Co., 66 F.3d 164, 167-68 (8th Cir.
1995) (en banc); Brinkley-Obu, 36 F.3d at 345-51.

The defendants seek to uphold the summary judgment
on the disparate pay claim on the ground that the
undisputed facts show that any difference in pay between
the employees in the ISD unit who also had the title of
project manager "was a result of the varying degrees of
seniority, experience, education and difference in job
responsibilities." Br. of Appellees at 19. It may, indeed, be
true that whatever differences existed were the result of

                               9
factors other than ethnicity and that the failure to promote
Cardenas to a level that he claims would have been
consistent with his responsibilities may have been due to
his failure to request and/or merit promotion. However,
because the District Court disposed of the disparate pay
claim on the basis of the statute of limitations rather than
any merits factor, we cannot reach those issues but will
leave them to the District Court on remand.3

For the reasons set forth above, we will reverse the
District Court's order granting summary judgment for
defendants on Cardenas' disparate pay claims and remand
the case for a determination on the merits.

IV.

Cardenas contends he became subject to a hostile work
environment after Jon Massey became his immediate
supervisor on March 7, 1991 pursuant to an ISD
reorganization. According to Cardenas, Massey subjected
him to ethnic slurs and comments, beginning with their
initial interview and continuing through 1994. Among other
things, Massey allegedly called Cardenas the "boy from the
barrio," app. at 1185, asked Cardenas why he had
anglicized his name, and regularly dealt with professional
disagreements by questioning whether Cardenas intended
to pull out a switchblade. Until 1993, Cardenas also found
derogatory anonymous messages on the marker board in
his cubicle, which he believes Massey wrote. The most
offensive message used the word "mojado," which means
"wetback." App. at 895, 1189.

He further contends that Massey discriminated against
him in completing performance evaluations.4 Regarding
_________________________________________________________________

3. Nor do we decide whether the initial decision to hire Cardenas at a
level 30 was due to ethnicity or, as defendants argue, the policy or
practice not to hire any new hire at level 32. We will give the District
Court the opportunity to decide in the first instance whether it is a
separate claim or survives the statute of limitations bar because it is
inextricably bound to the disparate pay claim.

4. The AOC performance evaluations consist of ten component ratings
and an overall rating. The component categories are: (1) knowledge of

                                10
Massey's disparate performance evaluations, Cardenas has
provided evidence that appears to show that Massey
regularly rounded up the component ratings when
determining the overall scores of non Hispanic subordinates
but rounded down when calculating ratings of Cardenas,
sometimes to the point of rating Cardenas lower overall
than white employees with lower component ratings. 5
Cardenas contends that Rebo also discriminated against
him, though more subtly than Massey. For example, he
points out that Rebo assigned minorities and trainees
disproportionately to his unit and claims that Rebo
tarnished his reputation by spreading the word that he was
an affirmative-action hire. He further notes that Rebo
reviewed each of Massey's performance evaluations (of
Cardenas and of Massey's other subordinates) before they
were issued, and had the authority to change the ratings.
App. at 971-73.

Finally, Cardenas asserts Rebo and Massey collectively
impeded his job performance through other facially neutral
management devices, such as knowingly contradictory
instructions and assignments incompatible with his staff
resources. He claims that Massey insisted Cardenas obey
him even when he contradicted Rebo and did not defend
_________________________________________________________________

work, (2) attendance history, (3) quantity of work, (4) quality of work,
(5)
planning and organization, (6) initiative, (7) mental ability, (8)
analytical
ability and judgment, (9) leadership, and (10) development of personnel.
The evaluator gives the employee one of five rankings (unsatisfactory,
marginal, satisfactory, commendable, and outstanding/superior) for each
category and an overall rating. See, e.g., App. at 206-13.

5. Cardenas assigned each rating a number, from 0 to 4, then calculated
his "GPA" from the ratings in the component categories, which he then
compared to the overall ratings. Massey gave Cardenas an overall rating
of "satisfactory" or "2" for GPAs of 2.5, 2.4, and 2.6, and an overall
rating of "marginal" or "1" for a GPA of 1.7. App. at 474-505. By
contrast, Massey gave other subordinates overall ratings of
"commendable" or "3" for GPAs of 2.4, 2.55, 2.6, and 2.6, and a
"satisfactory +" or "2.5" for a GPA of 2.2. App. at 896-935. Notably,
Cardenas himself received an overall rating of "commendable" or "3" for
a GPA of 2.6 in an evaluation he received from his previous supervisor.
App. at 216-23. We express no opinion on the accuracy of Cardenas'
rating system, an issue for the trier of fact.

                               11
Cardenas when his express directives got Cardenas into
trouble.

Cardenas claims that he complained to Massey, Rebo,
Lipscher, Bobby Battle (the AOC's Equal Employment
Opportunity ("EEO") Officer), and Human Resources
personnel about Massey's harassment to no avail. He
asserts that Battle refused to address the problem
informally and that the harassment continued unabated
until Cardenas submitted a formal complaint on December
30, 1994, which he had been reluctant to do for fear of
retaliation. Defendants emphasize that Cardenas made no
allegations of specific discrimination to anyone in the AOC
until the summer of 1994, and that many of his complaints
were non-specific or accompanied by requests that the
particular incident be treated as minor or that he be left to
deal with the problem on his own to avoid reprisals.

The failure to complain to higher management did not
defeat plaintiffs' Title VII claims in Faragher v. Boca Raton,
524 U.S. 775, 782 (1998), or Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 748-49 (1998), and we see no reason
why the failure to file a formal complaint would defeat
Cardenas' claim here. As noted, he did subsequently file a
complaint pursuant to the AOC procedures. Thus, at most,
if Cardenas sent a mixed message, it would be an issue
going to his credibility as to the severity of the harassment.

Cardenas did not complete providing detailed allegations
for his EEO complaint until March 1995. On March 3,
1995, the AOC rejected his request that he and his entire
unit be transferred out of the ISD immediately, but offered
him three temporary alternative work assignments for the
pendency of the EEO investigation. Cardenas asserts that
the options were unacceptable because they either left him
under Rebo's or Massey's supervision or demoted him by
removing his management responsibilities. Moreover,
Cardenas claims that when he nonetheless professed
interest in one option, his efforts to accept it were
stonewalled. On April 6, 1995, he filed a charge with the
EEOC.

Cardenas contends that the internal EEO investigation
was overly long, pointing out that the investigators did not

                               12
send charges to Rebo and Massey until June 1995, and
then granted their request for an extension to respond. The
EEO did not issue a report until October 30, 1995.
Cardenas received a copy of the report in November 1995.
He argues that the report's conclusion finding "no evidence
of discrimination," App. at 285, is unfounded. He also notes
that the investigation did not address his disparate pay
claim.

Cardenas has also asserted a claim of retaliation which
he attributes to his engaging in three protected activities in
1994 and 1995 known to Massey and Rebo. He supported
a subordinate's sexual harassment allegations against Rebo
in June 1994, filed a formal discrimination complaint
against Massey and Rebo with the AOC's EEO that
December, and offered to support a lateral job applicant's
EEO complaint against Massey in January 1995. Cardenas
claims to have suffered retaliation from Rebo and Massey
for his protected activities. He cites, for example, an
allegedly undeservedly low performance evaluation in
August 1994, a threat of discipline which sent him to the
hospital with stress-induced chest pains, increased
personnel disruptions in his unit, and an unusual
summons to the human resources department which
provoked a second stress attack severe enough to warrant
a second hospital visit.

In November 1995, allegedly realizing he could not
salvage his job, Cardenas began looking for new
employment. He left the AOC on March 1, 1996, and
received his "right-to-sue" letter from the EEOC on May 28,
1996.

A hostile work environment, first recognized by the
Supreme Court as a basis for a discrimination claim under
Title VII in Meritor Savings Bank, FSB v. Vinsen , 477 U.S.
57, 65-68 (1986), in a case claiming sexual harassment, is
now established as a basis for various discrimination
claims. See Faragher v. Boca Raton, 524 U.S. 775, 786-87
(1998) (discussing the Court's "repeated" clarifications of
the foundations of hostile work environment claims). In
order to establish a hostile work environment claim under
Title VII, Cardenas must show that (1) he suffered
intentional discrimination because of his national origin; (2)

                               13
the discrimination was pervasive and regular; (3) it
detrimentally affected him; (4) it would have detrimentally
affected a reasonable person of the same protected class in
his position; and (5) there is a basis for vicarious liability.
See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074,
1081 (3d Cir. 1996).

In considering whether Cardenas has established the
elements of a hostile work environment claim, the record
must be evaluated as a whole to decide whether the
plaintiff has proved his or her case, because "[p]articularly
in the discrimination area, it is often difficult to determine
the motivations of an action and any analysis is filled with
pitfalls and ambiguities. . . . [A] discrimination analysis
must concentrate not on individual incidents, but on the
overall scenario." Durham Life Ins. Co. v. Evans, 166 F.3d
139, 149 (3d Cir. 1999) (quotations omitted); see also
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)
("Whether an environment is `hostile' . . . can be determined
only by looking at all the circumstances."). Title VII applies
to both "facially neutral mistreatment . . .[and] overt
[ethnic] discrimination . . . [which] in sum constitute[ ] the
hostile work environment." Id. at 148; 6 see also Aman, 85
F.3d at 1081-84 (discussing the increased sophistication of
modern violators, the obligation of courts to be
"increasingly vigilant" against subtle forms of
discrimination, and the importance of allowing plaintiffs to
prove discrimination indirectly: "[i]n light of the suspicious
remarks [arguably racial slurs] . . . , a reasonable jury
could interpret [facially neutral] behavior[such as stolen
time cards] as part of a complex tapestry of
discrimination").

The District Court accepted that Massey's alleged
remarks and the anonymous marker-board messages
satisfied the causation element of the hostile work
_________________________________________________________________

6. We draw here on standards developed in sexual harassment cases. As
the Supreme Court observed in Faragher,"[a]lthough racial and sexual
harassment will often take different forms, and standards may not be
entirely interchangeable, we think there is good sense in seeking
generally to harmonize the standards of what amounts to actionable
harassment." Faragher, 524 U.S. at 787 (1998).

                               14
environment claims but noted that "some of the other
allegedly hostile actions taken by the [appellees] were not
overtly ethnically based." Dec. 2 opinion at 20. However,
reviewing the totality of defendants' alleged discriminatory
conduct as required by Durham, the District Court
concluded that Cardenas' "only factual allegations . . . that
arguably can be considered severe and pervasive instances
of ethnically hostile conduct are [his] claims regarding
Massey's disparaging comments about [Cardenas']
ethnicity." Id. at 24. The court held that assigning minority
workers to a minority manager's unit does not create a
hostile environment, found that Cardenas "failed to come
forward with any evidence . . . indicat[ing] racial hostility
infected the [performance] evaluation process," id. at 23,
and found no evidence that Massey and Rebo set Cardenas
up to fail. Although the District Court agreed that Cardenas
had presented evidence of ethnic animus on Massey's part,
the court stated that "a plaintiff cannot prove a case of
ethnic discrimination merely by . . . raising the specter of
discrimination over otherwise legitimate management
decisions that may have negatively impacted a minority
employee." Id. at 24.

We cannot say that the District Court's evaluation of the
evidence was not a reasonable one for a trier of fact to
reach. However, the District Court declined to examine the
possibility that defendants' "management decisions"
masked discriminatory intent. As this court has previously
emphasized, the advent of more sophisticated and subtle
forms of discrimination requires that we analyze the
aggregate effect of all evidence and reasonable inferences
therefrom, including those concerning incidents of facially
neutral mistreatment, in evaluating a hostile work
environment claim. See Durham, 166 F.3d at 148-49;
Aman, 85 F.3d at 1081-84.

In addition to the oral and written ethnic slurs cited by
the District Court, Cardenas has provided evidence from
which a jury might find ethnic animus underlying other
ostensibly nondiscriminatory incidents. For example,
disproportionate assignment of minority employees to the
only unit supervised by a minority manager might create an
impression of, or be motivated by an intent to achieve,

                                15
segregation. Likewise, consistently lower performance
evaluations for a protected class member as compared to
non-protected co-workers may indicate discriminatory
intent.7

Defendants contest the manner in which Cardenas has
made numerical equivalents, but Cardenas' figures create
an inference strong enough that we cannot disregard the
evidence for purposes of summary judgment. The AOC's
evaluation process is subjective and a jury could conclude
that Massey, who allegedly subjected Cardenas to
ethnically-charged comments, was motivated by ethnic
animus in giving Cardenas lower overall ratings than white
employees when Cardenas had higher component ratings.
Similarly, a jury could find that Rebo might reasonably
have been expected to notice and address this suspect
pattern.

Finally, Cardenas has provided evidence from which a
jury could conclude that Rebo and Massey set him up to
fail. Cf. Harris, 510 U.S. at 23 (one of many factors which
may indicate hostile work environment is "whether it
unreasonably interferes with an employee's work
performance.").8 For example, Cardenas testified at his
_________________________________________________________________

7. One commentator has written of the effect of similar conduct in sexual
harassment situations. See Vicki Schultz, Reconceptualizing Sexual
Harassment, 107 Yale L.J. 1687 (1998) cited with approval in Durham
Life Ins. Co. v. Evans, 166 F.3d 139, 149 (3d Cir. 1999) (observing that
some prevalent forms of sexual harassment include"denigrating
[victims'] performance . . . , providing sexist evaluations of [victims']
performance or denying them deserved promotions, . .. denying [victims]
the perks or privileges that are required for success, . . . [and]
engaging
in taunting, pranks, and other forms of hazing designed to remind
[victims] that they are different and out of place.").

8. "To render visible many of the . . . forms of harassment that remain
hidden, we should also recognize that much of the behavior that creates
a hostile working environment is conduct that has the purpose or effect
of undermining the perceived or actual competence of[the victim of
discrimination]." Schultz, supra note 7, at 1762. Indeed, "there are
diverse ways of subverting a [victim's] perceived or actual competence.
Sometimes it takes the form of deliberate sabotage of a [victim's] work
performance, such as . . . simply assigning her tasks that are impossible
to accomplish." Id. at 1764. (internal citations omitted).

                               16
deposition regarding an incident where, pursuant to
Massey's orders, he curtailed the scope of a presentation
requested by Rebo, and was publicly berated by Rebo as a
result. App. at 1017-18. If true, this may be analogous to
incidents referred to in Durham which were included as
constituting a hostile workplace. 166 F.3d at 145-46. He
also claims that he was given assignments too complicated
for his unit, which had a disproportionately high number of
trainees, to complete successfully. See id.

The District Court determined that a jury could conclude
that Cardenas' allegations regarding the ethnically
harassing comments by Massey were severe and pervasive
enough and would offend a reasonable person, satisfying
the elements of the hostile work environment claim as to
Massey. Feb. 2 op. at 25. However, it found "a paucity of
credible evidence" showing that the other defendants acted
in a discriminatory manner based on Cardenas' ethnicity.
Id. at 24. Although Cardenas may not have presented as
much evidence as did plaintiffs in other hostile workplace
environment cases, we cannot conclude that he has not
presented enough evidence to make a genuine issue of
material fact. We believe that a jury could determine that
this hostile work environment stemmed from several forms
of facially neutral mistreatment as well as from Massey's
facially discriminatory comments.

We have no reason to believe the result would be any
different under the LAD. To establish a hostile work
environment claim under the LAD, a plaintiff "must
demonstrate that the defendant's conduct (1) would not
have occurred but for the employee's [national origin]; and
[the conduct] was (2) severe or pervasive enough to make a
(3) reasonable [person of the same protected class] believe
that (4) the conditions of employment are altered and the
working environment is hostile or abusive." Taylor v.
Metzger, 152 N.J. 490, 498, 706 A.2d 685, 688-89 (1998)
(quotations omitted). The elements of this claim closely
resemble the first four elements of the Title VII hostile work
environment claim. Moreover, like this court, the New
Jersey Supreme Court requires a cumulative analysis of the
incidents comprising an alleged hostile work environment.
See Lehmann v. Toys `R' Us, Inc., 132 N.J. 587, 607, 626

                                17
A.2d 445, 455 (1993). Therefore, our discussion of the Title
VII claim above applies with equal force to this claim's basic
elements. We conclude that Cardenas has provided
sufficient evidence of an actionable hostile work
environment under the LAD to survive summary judgment.

Cardenas also claims retaliation as another basis for
liability. The District Court recognized that to establish a
prima facie retaliation claim under Title VII,S 1981, or the
LAD, Cardenas must show: (1) that he engaged in a
protected activity; (2) that he suffered an adverse
employment action; and (3) that there was a causal
connection between the protected activity and the adverse
employment action. Dec. 2 opinion at 38; see Robinson v.
City of Pittsburgh, 120 F.3d 1286, 1299 (3d Cir. 1997) (Title
VII); Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 198 (3d Cir.
1996) (LAD); Khair v. Campbell Soup Co., 893 F. Supp. 316,
335 (D.N.J. 1995) (S 1981).

The District Court granted summary judgment for
defendants on Cardenas' retaliation claims, finding that
Cardenas had not shown that he engaged in a protected
activity or, assuming Cardenas suffered an adverse
employment action, any causal relationship between that
activity and the actions that were allegedly retaliatory. Dec.
2 op. at 39. We are satisfied that Cardenas has pointed to
evidence that he engaged in three protected activities
between June 1994 and January 1995 in the form of his
own discrimination complaint and his cooperation in the
complaints of two other individuals.

In Robinson, we stated that an adverse employment
action is one which is "serious and tangible enough to alter
an employee's compensation, terms, conditions, or
privileges of employment." See 120 F.3d at 1300. Cardenas
claims that his resignation was a constructive discharge,
which we will assume arguendo would constitute an
adverse employment action. "In order to establish a
constructive discharge, a plaintiff must show that the
employer knowingly permitted conditions of discrimination
in employment so intolerable that a reasonable person
subject to them would resign." Aman, 85 F.3d at 1084
(quotations omitted). A "continuous pattern of
discriminatory treatment over a period of years" may

                               18
constitute "intolerable" conditions even without a particular
egregious precipitating incident. Id. ("The fact that Aman
had been subject to continuous discrimination during her
employment could support a conclusion that she simply
had had enough. No other precipitating facts were legally
required.").

The District Court was willing to assume for purposes of
summary judgment that Cardenas suffered a constructive
discharge but found missing evidence of any causal link to
any of the alleged protected activity. As to the poor
performance evaluation, which Cardenas also cites here as
retaliatory, the District Court concluded that Cardenas
failed to show that the improper performance evaluation
was causally related to Cardenas' engaging in any protected
activity. Dec. 2 opinion at 40.

We are, of course, cognizant of our obligation to view the
record and submissions of the parties so that we may draw
all reasonable inferences in favor of the non-moving party.
As is evident from the foregoing, we have been able to find
enough evidence to show the existence of a genuine issue
of material fact as to the existence of a hostile work
environment. We have been unable to find any such issue
with respect to the required causal element in Cardenas'
retaliation claim. He contends that the evaluation that
rated the work he performed through August 1995 as
"marginal," the lowest he ever received, was not presented
to him until after the completion of the EEO report. There
have been cases in which the temporal relation between an
adverse employment action and the protected activity has
enabled the court to draw the inference of causal
relationship. See, e.g., Jalil v. Advel Corp., 873 F.2d 701,
708 (3d Cir. 1989) (inferring causation when discharge
occurred two days after employer's notice of plaintiff 's
EEOC complaint). However, "temporal proximity alone will
be insufficient to establish the necessary causal connection
when the temporal relationship is not `unusually
suggestive.' " Farrell v. Planters Lifesavers Co., 206 F.3d
271, 280 (3d Cir. 2000) (quoting Krouse v. American
Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)). The
temporal relationship in this case is, alone, insufficient to
establish causation, because the alleged protected activity

                               19
took place over a substantial period of time and any routine
employment action taken during that period would
necessarily be related temporally. In such circumstances,
there would have to be another basis to permit the
inference of a causal relationship.

Although we have held that many of the employment
actions to which Cardenas points as retaliatory were part of
the fabric of incidents from which a factfinder could
conclude made for a hostile work environment, it was
Massey's overt ethnic hostility that formed the thread
between the employment actions and the alleged hostile
environment. There is no similar basis to form a thread
between the same otherwise routine employment actions
and the protected activity. Our finding such a thread would
be sheer speculation. Under that circumstance, we will
affirm the judgment of the District Court granting
defendants summary judgment on Cardenas' retaliation
claim.

V.

Having determined that the District Court's dismissal of
Cardenas' claim for disparate pay on the basis of the
statute of limitations was erroneous as a matter of law and
that its grant of summary judgment for the defendants on
liability for a hostile workplace cannot be sustained, we
must decide which claim survives as to which defendant.
Inasmuch as Cardenas settled with Massey, the defendant
with the most direct culpability, we consider only the
claims against the other defendants.

The District Court, having dismissed the disparate pay
claims, never considered which defendants would be liable
if Cardenas were to prevail on the merits of that claim. Dec.
2 opinion at 17. We believe it appropriate for the District
Court to consider that issue in the first instance. We
therefore limit our consideration to the question of liability
on the hostile work environment claim. Of course, if
Cardenas does not prevail, there would be no reason to
consider relief as to any of the defendants. Nonetheless, we
proceed to consider whether there are other grounds to
affirm the District Court's dismissals as to each defendant
at this stage.

                               20
Cardenas seeks only equitable relief from Chief Justice
Poritz and Ciancia. He seeks an injunction requiring them
to implement specific anti-discrimination policies at the
AOC and alter his employment records retroactively to
reflect, contrary to fact, a higher pay-grade classification
and more favorable performance evaluations. In support of
his position, Cardenas cites authority for the proposition
that Title VII, S 1981, and the LAD all provide for equitable
relief, see 42 U.S.C. S 2000e-5(g)(1) (Title VII); Johnson v.
Railway Express Agency, Inc., 421 U.S. 454, 460 (1975)
(S 1981); Shaner v. Horizon Bancorp., 116 N.J. 433, 441,
561 A.2d 1130 (1989) (LAD), and contends that he"cannot
obtain the whole remedy that Title VII specifically promises
and that is implicit in S 1981 and the LAD" without the
equitable relief he seeks, Br. for Appellant at 62.

Because Cardenas is no longer employed by the AOC, he
will not be affected by its implementation of, or failure to
implement, new anti-discrimination policies. Therefore, a
change in AOC anti-discrimination policies will not make
him "whole" or remedy violations he contends the
defendants committed.9 Regarding Cardenas' novel request
for an injunction requiring the AOC to alter his
performance evaluations and pay-grade classification to
reflect not what they actually were but what they would
have been without discrimination, he has presented no
precedent, nor have we found one, granting equitable relief
which would require a public agency to complete its records
counterfactually. We therefore affirm the District Court's
grant of summary judgment to Ciancia and Poritz regarding
Cardenas' claim for equitable relief.

We consider next whether there is any basis on which
Cardenas could maintain his claims for a hostile work
environment against the state of New Jersey. The Supreme
Court recently reviewed the standard for Title VII employer
_________________________________________________________________

9. To the extent he seeks relief for perceived ongoing discrimination at
the AOC against current employees, he has presented no evidence of
such discrimination and cannot in any case assert the rights of the
employees. See O'Malley v. Brierley, 477 F.2d 785, 789 (3d Cir. 1973)
(citing "the principle that one cannot sue for the deprivation of
another's
civil rights") (quotations omitted).

                               21
liability in the context of sexual harassment and clarified
that agency principles apply. See Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca
Raton, 524 U.S. 775 (1998). An employer is liable for acts
committed by its employees in the scope of their
employment, which may include some types of disparate
treatment of employees by supervisors, such as
discriminatory reprimands or job assignments. See
Faragher, 524 U.S. at 798-99. Pure harassment (e.g., ethnic
slurs) is not within the scope of employment and the Court
suggested that hostile work environment cases will most
often properly be analyzed under the rubric of either
employer negligence or vicarious liability. See id. at 802-07;
Ellerth, 524 U.S. at 757-59.

The Court held that employers are subject to vicarious
liability under Title VII for hostile work environments
created by supervisory employees. However, it also
enunciated an affirmative defense limiting this liability
when the plaintiff has not suffered a tangible adverse
employment action. The defense depends on the
reasonableness of both the employer's and the plaintiff 's
preventative and remedial measures. Specifically, the Court
held:

       An employer is subject to vicarious liability to a
       victimized employee for an actionable hostile
       environment created by a supervisor with immediate
       (or successively higher) authority over the employee.
       When no tangible employment action is taken, a
       defending employer may raise an affirmative defense to
       liability or damages, subject to proof by a
       preponderance of the evidence . . . . The defense
       comprises two necessary elements: (a) that the
       employer exercised reasonable care to prevent and
       correct promptly any sexually harassing behavior, and
       (b) that the plaintiff employee unreasonably failed to
       take advantage of any preventive or corrective
       opportunities provided by the employer or to avoid
       harm otherwise. . . . No affirmative defense is available,
       however, when the supervisor's harassment culminates
       in a tangible employment action, such as discharge,
       demotion, or undesirable reassignment.

                               22
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807-08.

In this case, the District Court held that although
Cardenas had made a prima facie case showing a hostile
work environment based on Massey's ethnically disparaging
comments, the undisputed evidence "shows that the
defendants took reasonable steps to prevent harassment in
the workplace, and the plaintiff failed to avail himself of the
AOC's complaint procedure until December, 1994." Dec. 2
opinion at 34. The court continued, "[o]nce the plaintiff did
file a complaint, the undisputed evidence shows that the
AOC took immediate, albeit temporary, remedial measures
while it conducted an investigation, and the harassment
stopped." Id.

Cardenas does not have to prove at this stage that New
Jersey is liable for a hostile work environment. Instead, he
need merely show that there is a genuine issue of material
fact that it may be held liable for employer liability. If
Cardenas does prove the existence of a hostile work
environment, New Jersey will be liable if (1) Cardenas
shows that Massey's overt harassment or Rebo's more
subtle approach led to a tangible employment action or (2)
one of the two bases for an Ellerth/Faragher affirmative
defense as to employer supervisory liability is not available.
Cardenas argues that his resignation from the AOC was in
fact a constructive discharge which would constitute a
tangible employment action and preclude New Jersey from
using the Ellerth/Faragher defense. 10 If Cardenas convinces
_________________________________________________________________

10. "A tangible employment action constitutes a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits." Ellerth, 524 U.S. at 761. There
appears to be some disagreement on whether constructive discharge
constitutes a tangible employment action. Compare Caridad v. Metro
North Commuter R.R., 191 F.3d 283, 294 (2d Cir. 1999) (stating
"constructive discharge does not constitute a`tangible employment
action' as that term is used in Ellerth and Faragher.") with Durham Life
Ins. Co. v. Evans, 166 F.3d 139, 153 (3d Cir. 1999) (observing "[u]nder
[plaintiff]'s theory, any substantial adverse action . . . would not be a
tangible adverse employment action if it led the affected employee to quit
before the demotion took effect. This is contrary to Title VII doctrine,
which recognizes a constructive discharge under such circumstances.")

                               23
a jury that he was victimized by a hostile work environment
created by Massey or Rebo, it is certainly possible that the
same jury would find that the hostile environment was
severe enough to have precipitated Cardenas' resignation,
i.e., a constructive discharge. We have found that Cardenas
presented sufficient evidence to create a question of fact on
the existence of a hostile work environment. It follows that
he presented enough to survive summary judgment on the
constructive discharge issue, and hence New Jersey's
employer liability.

Even if the alleged hostile work environment had not
culminated in a tangible employment action, summary
judgment for New Jersey based on the Ellerth/Faragher
defense, which the District Court found dispositive, would
be premature. There are factual issues outstanding as to
the reasonableness of the parties' respective actions. As the
District Court pointed out, Cardenas did delay before filing
a formal EEO complaint and did refuse the alternative
positions the AOC offered him. On the other hand, he had
complained informally to Rebo, Massey, and Battle, the
EEO Officer, and Battle refused to address Cardenas'
concerns without a formal complaint. In these
circumstances, Cardenas' reluctance to file a formal
complaint for fear of aggravating the situation or branding
himself a troublemaker might not have been unreasonable.

Cardenas argues that the AOC's published anti-
discrimination policy and complaint procedure, on which
the District Court relied, was insufficient to satisfy
Ellerth/Faragher for a number of reasons. Cardenas asserts
that the investigators declined to re-interview him when he
insisted that his lawyer be present but instead adopted
Massey's explanation of the alleged ethnic slurs; the report
was issued seven months after he submitted his detailed
_________________________________________________________________

and Cherry v. Menard Inc., 101 F.Supp.2d 1160, 1171 (W.D. Iowa 2000)
("This court, however, does not agree with the decisions reached in
Caridad.").

We leave this issue to the District Court in the first instance. For
purposes of this discussion, we assume a constructive discharge is a
tangible employment action.

                               24
discrimination allegations (ten months after his initial,
formal complaint) and during that period he remained
under the supervision of Massey and Rebo, allegedly
subject to continuing discrimination; the AOC allegedly did
not respond to his e-mail asking for protection against
ongoing retaliation; the alternative positions offered to
Cardenas pending the investigation purportedly either left
him under the supervision of Rebo or Massey or effectively
demoted him by eliminating or significantly decreasing his
managerial duties, and his effort to find out more about,
and possibly accept, one of the positions was stonewalled;
and the internal investigation failed to address his
disparate pay claim and concluded that there was no
discrimination and therefore offered him no relief.
Inasmuch as we cannot rule out a genuine issue of material
fact with respect to whether the Ellerth/Faragher
affirmative defense would be available to New Jersey, we
cannot sustain the grant of summary judgment on the Title
VII claim as to New Jersey.

Similarly, New Jersey may be liable under its own LAD.
Under New Jersey's LAD, employers are liable under
traditional agency principles. See, e.g., Rudolph v. Adamar
of N.J., Inc., 2001 U.S. Dist. LEXIS 10902, *39 (D.N.J. July
31, 2001) ("Suits brought against the State as an employer
are clearly within the scope of the explicit waiver of
sovereign immunity contained in [the LAD]"); Newsome v.
Administrative Office of Courts, 103 F.Supp.2d 807, 821
(D.N.J. 2000) ("As with Title VII, under the LAD, traditional
agency principles govern the extent to which the[employer]
may be liable for compensatory damages for [a supervisor's]
actions. When a supervisor . . . , acting within the scope of
his employment, harasses an employee under his
supervision, the employer is vicariously liable.").

It remains to consider whether there is a basis also to
retain as defendants the two remaining named individuals,
Rebo and Lipscher. Although claims against individual
supervisors are not permitted under Title VII, see, e.g.,
Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d
1061, 1077-78 (3d Cir. 1996) (en banc), this court has
found individual liability under S 1981 "when [the
defendants] intentionally cause an infringement of rights

                               25
protected by Section 1981, regardless of whether the
[employer] may also be held liable." See Al-Khazraji v. Saint
Francis Coll., 784 F.2d 505, 518 (3d Cir. 1986); see also
Santiago v. City of Vineland, 107 F.Supp.2d 512, 540-41
(D.N.J. 2000). In Jett v. Dallas Indep. Sch. Dist., 491 U.S.
701 (1989), the Supreme Court held S 1983 provides the
" `exclusive federal damages remedy for the violation of the
rights guaranteed by S 1981 when the claim is pressed
against a state actor.' " Following Jett , Congress passed the
Civil Rights Act of 1991 which amended S 1981 to provide
that "rights protected by this section are protected against
impairment by nongovernmental discrimination and
impairment under color of State law." 42 U.S.C.
S 1981(c)(1994). As a district court has noted, "[f]ederal
courts have disagreed whether S 1981(c) abrogates Jett by
creating an implied independent cause of action." Meachum
v. Temple Univ., 42 F.Supp.2d 533, 541 n.9. (E.D. Pa.
1999); see also Jones v. School Dist., 198 F.3d 403, 414-15
(3d Cir. 1999); Santiago, 107 F.Supp.2d at 540 n.17 (D.N.J.
2000) (suggesting it is an open question in this circuit
whether S 1981 claims are available against state actors).

Under the LAD a supervisory employee may be liable for
discrimination for aiding and abetting another's (the
employer's) violation. See Hurley, 174 F.3d at 126; see also
Failla v. City of Passaic, 146 F.3d 149, 158 (3d Cir. 1998)
("[A] person is liable for harm resulting to a third person
from the conduct of another when he knows that the
other's conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to
conduct himself.") (quotation omitted). Moreover, a
supervisor has a duty under New Jersey law to act against
harassment, and a supervisor's violation of this duty by
either deliberate indifference or affirmative harassment
subjects the supervisor to LAD liability. Hurley , 174 F.3d at
128 (citing New Jersey cases); see also id. at 126 (failure to
act may qualify as aiding and abetting when it rises to the
level of "substantial assistance or encouragement.")
(quotation omitted).

We need not reach that issue as to Lipscher because the
only evidence implicating Lipscher in discriminatory
activities is his ultimate responsibility for the investigation

                               26
as the AOC Director. There is no evidence suggesting that
he was aware of, but ignored, Cardenas' cries for help or
defects in the investigation. There is no evidence that
Lipscher discriminated against Cardenas or was
deliberately indifferent to the discrimination he suffered.
The evidence indicates that Lipscher had little contact with
Cardenas and that he did not make the type of daily
managerial decisions Cardenas claims masked Massey's
and Rebo's discriminatory intent. There is no evidence that
Lipscher had any reason to believe Cardenas' direct
supervisors were breaching their duty not to discriminate.
Lipscher's acceptance of the investigator's report, which
Cardenas characterizes as a "whitewash" and which
excused Massey's derogatory comments (or purported to
explain why they were not derogatory), does not create a
genuine issue as to his discriminatory intent. Cardenas has
not presented any evidence that Lipscher had reason to
believe the report was inaccurate, incomplete, or in bad
faith. No reasonable jury could find that Lipscher aided or
abetted any discrimination against Cardenas. The evidence
shows that Lipscher took Cardenas' complaint seriously,
assigned an investigator to the case, and accepted the
investigator's report. We agree with the District Court that
a reasonable jury could not find any basis for liability as to
Lipscher, either individually or in his official capacity.

Retention of Rebo is, of course, a different matter. The
majority of the behavior which Cardenas found offensive
was perpetrated by either Rebo or Massey. Whether Rebo
was involved in, or deliberately indifferent to, many of the
allegedly discriminatory actions contributing to the claimed
hostile work environment is an issue of fact. For example,
Rebo was allegedly aware of some of Massey's comments
and conflicting directives to Cardenas but failed to prevent
them. He also controlled personnel assignments resulting in
disproportionate numbers of both minorities and trainees in
Cardenas' unit, and somehow the fact that Rebo had
selected Cardenas in part based on his ethnicity became
common knowledge in ISD. Moreover, Rebo failed to
recommend Cardenas' reclassification after assigning
Cardenas duties which he had previously used to help
justify a reclassification for another employee and after
Cardenas' successful negotiations with AT&T. Finally, Rebo

                               27
reviewed and approved Massey's allegedly disparate
performance reviews of his subordinates. A reasonable jury
could conclude from the available evidence that Rebo was
deliberately indifferent to, or participated in, Massey's
alleged harassment of Cardenas. There is sufficient basis to
raise a question of fact as to Rebo's liability on the basis of
intentional discrimination under the LAD and under
S 1981. We will, therefore, reverse the District Court's grant
of summary judgment to Rebo and remand for further
proceedings.11

VI.

To summarize, we will reverse the District Court's order
granting summary judgment for defendants on Cardenas'
disparate pay claims and remand for a determination on
the merits as to those claims; we will reverse the District
Court's grant of summary judgment to New Jersey on
Cardenas' claim of a hostile work environment under Title
VII and the LAD; we will reverse the District Court's grant
of summary judgment on behalf of Rebo on Cardenas' claim
of a hostile work environment under S 1981 and the LAD,
and in all other respects we will affirm the District Court's
grant of summary judgment.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

11. We have found it difficult to discern the bases of some of Cardenas'
claims. On remand, the District Court may use the procedures available
under the Federal Rules of Civil Procedure to require Cardenas to narrow
and clarify his remaining claims and their evidentiary bases.

                               28
