STANLEY R. CHESLER, District Judge.
This matter comes before the Court on the motion for summary judgment, pursuant to FED. R. CIV. P. 56, by Defendants The Pepsi Bottling Group, Inc. ("Pepsi"), Kevin Daniels, Amy Corona, and Douglas Haasis (collectively, "Defendants"). For the reasons set forth below, Defendants' motion will be granted.
This case arises out of an employment dispute. Plaintiff Moses Easter is African-American and was employed by Pepsi. In 2003, he filed a lawsuit against Pepsi which alleged race discrimination. Pepsi terminated Plaintiff in November of 2007. Pepsi alleges that Easter was terminated because he engaged in time and attendance fraud. Plaintiff alleges that he was terminated on account of his race and in retaliation for his protected conduct. In 2009, Plaintiff filed a Complaint which asserted six counts: 1) employment discrimination in violation of New Jersey's Law Against Discrimination ("NJLAD"); 2) wrongful discharge in violation of public policy; 3) intentional infliction of emotional distress; 4) negligent infliction of emotional distress; 5) tortious interference with contract; and 6) defamation. Defendants have moved for summary judgment on all counts in the Complaint.
Summary judgment is appropriate under FED. R. CIV. P. 56(a) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law.
"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party."
Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists.
If the nonmoving party has failed "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, ... there can be `no genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
All disparate treatment
If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant to "articulate some legitimate, non-discriminatory reason" for the employer's action.
If the defendant employer satisfies the burden, then "the plaintiff must `submit evidence from which a factfinder could reasonably either (1) disbelieve the employer's articulated reasons or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.'"
At this stage, the burden has shifted back to the plaintiff, and the plaintiff must show, by a preponderance of the evidence, that the employer's explanation is pretextual.
Defendants first move for summary judgment on Plaintiff's claim of employment discrimination under the NJLAD. Defendants have chosen not to put the prima facie case at issue in this motion, and argue instead only that Plaintiff lacks evidence to establish pretext. (Defs.' Br. 8 n.3.) The summary judgment burden then shifts to Plaintiff to point to the evidence from which a trier of fact could find that Defendants' stated reasons for terminating Plaintiff are pretextual.
Plaintiff's opposition completely fails to point to evidence from which a reasonable trier of fact could conclude that the stated reasons for terminating Plaintiff are pretextual. Plaintiff's L. Civ. R. 56.1 Statement makes only eleven factual statements. Nine of these cite only to Plaintiff's Complaint, which is a pleading; it is not admissible evidence. The only two factual statements that cite to admissible evidence are number 4 (stating Plaintiff's pay rate) and number 11 (stating that Pepsi was aware of Plaintiff's prior lawsuit). This Court holds, as a matter of law, that these two factual assertions are insufficient to show that Pepsi's stated reasons for terminating Plaintiff were a pretext for race discrimination. No reasonable trier of fact could view this evidence and conclude that Plaintiff had proven his case under
Plaintiff's opposition brief does argue that he has offered evidence sufficient to raise an inference of illegal retaliation but fails to point to any actual evidence to support this argument. Absent evidentiary support, the argument alone cannot defeat the motion for summary judgment. Plaintiff argues that similarly-situated white employees who were accused of similar misconduct received milder disciplinary consequences than he did. This might have been relevant, had Plaintiff offered any evidence to support it — but Plaintiff cites only the Complaint in support. Plaintiff also cites the Third Circuit's decision in
Plaintiff has failed to defeat Defendants' motion for summary judgment on the claim for employment discrimination in violation of NJLAD.
Plaintiff's opposition brief makes no attempt to respond to the Defendants' motion for summary judgment as to the remaining claims in the Complaint. This Court construes this as a concession that, as to the remaining claims in the Complaint, Defendants' motion for summary judgment is unopposed. Defendants' motion for summary judgment will therefore be granted in its entirety.
Defendants have shown that no factual disputes preclude a grant of summary judgment, and that, pursuant to Federal Rule of Civil Procedure 56, they are entitled to judgment as a matter of law. Defendants' motion for summary judgment is granted, and Judgment will be entered in Defendants' favor on the Complaint in its entirety.