CLAIRE C. CECCHI, District Judge.
This matter comes before the Court by Motion for Summary Judgment brought by Defendants Sizewise Rentals, LLC ("Sizewise") and Joyce Sklar ("Sklar") (collectively "Defendants") against Plaintiff John Doe ("Plaintiff or "Doe") pursuant to Federal Rule of Civil Procedure 56. Defendants have also moved to vacate this Court's Order permitting Doe and John Doe-1 ("Doe-1") (collectively, "Plaintiffs") to proceed using pseudonyms. Plaintiff has cross-moved to reinstate Doe-1's claims of racial discrimination
Sizewise is a company that delivers medical equipment to be used by overweight patients in hospitals and nursing homes. (Defendants' Statement of Undisputed Material Facts ("SOF") ¶ 1; Second Amended Complaint ("SAC") ¶ 2.) Doe is an "Egyptian Muslim" who worked at the Sizewise facility in Hackensack, New Jersey from June 16, 2008 until he was terminated in July 2009. (SOF ¶¶, 2; SAC ¶ 12.) As an Account Associate for Sizewise, Doe inspected equipment, drove and delivered the equipment to customers, and demonstrated to the customers how the equipment worked. (SOF ¶ 2; SAC ¶ 12.) Amy Sztejman ("Sztejman") was a District Sales Representative at Sizewise during the relevant time period. (Hill Cert., Ex. C.)
Sklar was a Regional Manager for Sizewise at the Hackensack facility during the relevant time. (Sklar Cert. ¶ 1; SOF ¶ 4.) Sklar interviewed Doe for his position and recommended that Sizewise hire him. (Sklar Cert. ¶ 1; SOF ¶ 4.) Doe began working at Sizewise in June 2008 and on October 22, 2008, Doe signed a form acknowledging his receipt of the employee handbook and policy. (Hill Cert., Ex. J.) According to Doe, soon after he began working at Sizewise, Sklar spoke to him about assuming additional responsibilities and potentially taking on a management position. (SOF ¶¶ 10-15;
In November 2008, Doe-1, who is a "Muslim from Turkey," began working at Sizewise after Doe recommended him for a job. (SOF ¶ 17; SAC ¶ 12.) Doe was assigned the task of training Doe-1, but Doe claimed that he did not have time to sufficiently train Doe-1. (SOF ¶ 20.) Early in Doe-1's employment, Doe told Sklar that Doe-1 was not performing as well as he had expected. According to Doe, Doe-1 was "frustrated" with having to work the night shift because it "was a lot of work" and he did not want to work at night. (SOF ¶ 21.) In the first six months that Doe-1 worked at Sizewise, he was involved In four accidents while driving a Sizewise vehicle. (SOF ¶ 22; Hill Cert., Ex. F.) According to Sizewise's termination report, Doe-1 was terminated on April 29, 2009 as a result of these accidents. (SOF ¶ 20; Hill Cert., Ex. F.) The decision to terminate Doe-1's employment was made at the corporate level, not by Sklar, Meyer, or Sztejman. (SOF ¶ 24; Guthrie Cert, ¶ 2.)
Cord Meyer ("Meyer") was hired as the Regional Operations Manager for Sizewise in February 2009. (Meyer Cert. ¶¶ 1-2.) In June 2009, Meyer requested that Doe complete a self-evaluation form in preparation for his performance review. When Doe failed to return the form, Meyer followed up with him on two occasions, but Doe told him that he was going to speak with Sklar before returning the form. (SOF ¶ 25; Meyer Cert. ¶ 2; Hill Cert., Ex. G.)
On approximately June 21, 2009, Doe called Sklar and accused her of terminating Doe-1 because he is Muslim and Sklar is Jewish. (SOF ¶ 27.) During that conversation, he "probably" told her that he thought Meyer was Jewish as well. (SOF ¶ 28.) Doe also threatened to bring a lawsuit if Sklar did not resign from Sizewise. (SOF ¶ 29.) After receiving the call from Doe, Sklar e-mailed her manager, Tim McCarty, and told him that Doe had called her on Friday June 19, 2009 and June 21, 2009 and alleged that he was discriminated against "because he is a Muslim." (SOF ¶ 31; Hill Cert., Ex. H.) On June 27, 2009, Doe sent an e-mail to Sklar, accusing her of using "a fabricated story" to fire Doe-1. (SOF ¶ 32; Hill Cert., Ex. I.) He stated in the e-mail that Sklar and Sztejman "are Jewish. [Doe-1] is Muslim. You have a lot to explain." (SOF ¶ 32; Hill Cert., Ex. I.)
In response to Doe's accusations of discrimination, Larry Askew, General Counsel for Sizewise, conducted an investigation of Doe's claims. (SOF ¶¶ 36-37; Askew Cert. ¶¶ 1-2.) Askew met with Doe on June 29, 2009, and Doe told Askew that Sztejman wanted to fire Doe-1 because he is Muslim. (SOF ¶ 37; Askew Cert., Ex. A.) He further told Askew that Sklar teamed up with Sztejman to fire Doe-1 because they are Jewish. (SOF ¶ 37; Askew Cert., Ex. A.) Doe also told Askew that he hated "taking direction from someone with less experience or less education than himself." (SOF ¶ 38.)
On July 2, 2009, a Sizewise customer, Arbor Glen Nursing Home ("Arbor Glen") faxed a letter "to inform [Sizewise] of a situation that took place between a Sizewise delivery man and one of [the customer's] employees" on July 1, 2009. (SOF ¶ 41; Guthrie Cert., Ex. A.) The letter Identified Doe directly and stated that he looked the customer's employee up and down and stared at her breasts. (SOF ¶ 42; Guthrie Cert., Ex. A.) The letter alleged that Doe asked the employee to "stand up and turn around so he could look at her" and the customer requested that Doe not be placed on their delivery route in the future. (SOF ¶ 42; Guthrie Cert., Ex. A.) At his deposition, Doe testified that he did not remember delivering equipment to this customer and he denies that he committed the misconduct about which the customer complained. (SOF ¶ 44.) A service ticket indicates that Doe made a delivery to the customer on July 1, 2009. (SOF ¶ 44; Hill Cert., Ex. K.) Sizewise terminated Doe's employment on July 7, 2009. (SOF ¶ 45.) Sizewise asserts the termination was a result of Doe's alleged misconduct, which was complained of by the customer. (SOF 45; Hill Cert., Ex. L.) Doe argues that Sklar's "obsession with the destruction of non-Jews" was a "motivating factor" in his termination and the termination of Doe-1. (SOF ¶ 46.)
Plaintiff filed this cause of action in July 2009, asserting various claims of employment discrimination under Title VII, 42 U.S.C. §§ 2000e-1 et seq., and 42 U.S.C. §§ 1981, 1985, and 1986 against Sizewise, Sklar, Sztejman, and Meyer. On August 2, 2010, this Court granted Plaintiffs' request to proceed anonymously in this case. (Order, Aug. 3, 2010, ECF Docket Entry No. 65.) Defendants filed a motion to dismiss the Second Amended Complaint, which was granted by this Court on September 7, 2010. (Letter Opinion, Sept. 7, 2010, ECF Docket Entry No. 78.)
Plaintiff filed a Third Amended Complaint on September 13, 2010. On November 22, 2010, Defendants moved to dismiss the Third Amended Complaint and this Court granted that motion in part and denied it In part. The Court found that read together, the Second and Third Amended Complaints allege that Sizewise terminated Doe's employment after he complained to Sklar "that John Doe-1's termination had been fueled by racial animus." (Letter Opinion, Nov. 22, 2011, ECF Docket Entry No. 91, at 9.) Plaintiff then filed a motion for reconsideration, which was denied on January 14, 2011. This Court's letter opinion stated that the lawsuit was to "proceed
Summary judgment is appropriate if the "depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials" demonstrate that there is no genuine issue as to any material fact, and, construing all facts and inferences in a light most favorable to the non-moving party, "the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c);
The moving party has the initial burden of proving the absence of a genuine issue of material fact.
Pursuant to this Court's letter opinion dated January 14, 2011, this lawsuit proceeds "
Courts allow parties to proceed anonymously in exceptional cases.
In this case, Doe testified at his deposition that he used a pseudonym when filing his complaint because he thought it was necessary if he were to proceed with a class action, not because he feared having his identity revealed.
Defendants argue that this Court should dismiss Doe's Section 1981 retaliation claim because he is "attempting to state a claim based on alleged religious discrimination against Muslims," when the statute "bars racial, not religious, discrimination."
42 U.S.C. §1981 provides:
42. U.S.C. § 1981.
To establish a prima facie case for retaliation under § 1981, a plaintiff must show by a preponderance of the evidence "(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."
In order to state a claim for retaliation under § 1981, the "protected activity" must relate to discrimination prohibited by § 1981, not just under any statute.
Here, Doe has failed to allege that he engaged in an activity protected by § 1981. Doe claims that Defendants engaged in racial discrimination and that Sklar gave preferential treatment to white employees. (Plaintiff's "Statement of Disputed Facts" ¶ 1; TAC ¶¶ E-J.) However, the undisputed facts show that Doe complained to Sizewise, asserting that he was discriminated against because he is Muslim. Furthermore, the record is devoid of any factual allegations establishing discrimination based on Plaintiff's race, ethnic characteristics or ancestry. During the June 21, 2009 phone call with Sklar, Doe accused her of "terminating John Doe-1 because he's Muslim and you are Jewish." (SOF ¶ 27.) Upon receiving the call from Doe, Sklar e-mailed her manager, Tim McCarty, and told him that Doe had called her on Friday June 19, 2009 and June 21, 2009 and alleged that he was discriminated against "because he is a Muslim." (SOF ¶ 31; Hill Cert., Ex. H.) He stated in a June 27, 2009 e-mail that Sklar and Sztejman "are Jewish. [Doe-1] is Muslim. You have a lot to explain." (SOF ¶ 32; Hill Cert., Ex. I.) Doe further told Larry Askew that Sztejman and Sklar fired Doe-1 because they are Jewish. (SOF ¶ 37; Askew Cert., Ex. A.) Doe also believed that Sklar treated Meyer more favorably because she favored Jewish people and Plaintiff believes Mr. Meyer to be Jewish.
Doe has argued that "[n]owhere, in Plaintiffs' Complaints, [have] religious practices ever been asserted." (Plaintiff's Opposition Brief ¶ 3.) Furthermore, he asserts that Defendants failed to address the fact that "Plaintiffs were an Arab Egyptian and a Turkish naturalized citizen[] and all [Defendants were Jewish Americans." (
Based on these facts, the Court does not accept Doe's argument that his complaints addressed to Sizewise were based on racial or ethnic discrimination. In his complaint to Sizewise, Doe only alleged that Sklar discriminated against him and Doe-1 because they are Muslim and she is Jewish. Therefore, his complaint was one of religious discrimination, which does not fall within the scope of protected activity under Section 1981.
Even assuming that Doe's complaints to Sizewise do fall under Section 1981, Doe's claims fail under further analysis. Under the second prong required for a section 1981 retaliation claim, it is undisputed that Doe was terminated from Sizewise on July 7, 2009. Under the third prong, however, Doe has failed to establish by a preponderance of the evidence, a causal connection between his complaints of discrimination and his termination from Sizewise. Doe asserts that there is a temporal connection because he was terminated approximately one week after he complained of discrimination. (Pl. Opp. 6.) However, he has not submitted any evidence that Sizewise responded negatively to his complaint. Sklar immediately contacted her supervisor following Doe's June 21, 2009 call. Following Doe's June 27, 2009 e-mail, Sizewise began investigating his complaints, sending Larry Askew to meet with Doe two days later on June 29, 2009. Furthermore, Doe testified during his deposition that Sizewise did not tell him they were terminating him because of the complaints he made. (Hill Cert., Ex. A, at 41.)
"[T]he mere fact that [an] adverse employment action occurs after [the protected activity] will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two."
Here, given all the surrounding circumstances, the timing of the termination is not "unusually suggestive of a retaliatory motive." Other than the fact that Doe's termination occurred about a week after Sizewise began investigating his complaint, there are no facts to suggest that the termination was related to his complaint. Therefore, the Court finds that Doe has failed to make a prima facie case of retaliation under Section 1981.
Even assuming that Doe could make a prima facie case of retaliation, Sizewise has asserted a legitimate, non-discriminatory reason for terminating Doe's employment. Sizewise claims that it terminated Doe's employment after a customer complained of Doe's misconduct during a delivery to a Sizewise customer on July 1, 2009. (Def. Br. 20.) In fact, Sizewise received a fax from its customer, Arbor Glen, complaining that a Sizewise delivery person had made inappropriate remarks to one of its female employees. (SOF ¶¶ 41-42.) While Doe testified that he did not remember making a delivery to Arbor Glen, the letter from Arbor Glen directly identifies Doe as the delivery person who was at fault. Moreover, the service ticket indicates that Doe made a delivery to Arbor Glen on July 1, 2009. (SOF ¶ 44.) Doe asserts that Sizewise fabricated the evidence regarding Arbor Glen's complaint, however, he offers no proof to support this argument. (Def. Br. 20; Hill Cert., Ex. A, at 39; Pl.'s SOF ¶ 10.) The Court finds that this speculation is not enough to establish a pretext for discrimination.
Plaintiff has asserted that Sklar is individually liable for retaliation under Section 1981. The Third Circuit has found that individuals who are personally involved in the discrimination against a plaintiff may be held liable under Section 1981.
Plaintiff claims that Sklar "engaged in interviewing candidates for employment," acted as supervisor, recommended termination, and allegedly "terminated all minority workers from employments [sic] prior to hiring Plaintiff John Doe." (Pl. Opp. 6.) While Sklar did interview candidates and recommend hiring, (
Plaintiff has asked this Court to reinstate Doe-1's claims against Sizewise and Sklar because "[Defendants have obstructed discovery for twenty four (24) months, where such botched discovery concealed the fabricated evidence of terminating John Doe-1." (Pl. Opp. 9; Pl.'s SOF ¶ 11.) Plaintiff also alleges that Meyer had a "part in causing the alleged accidents attributed to John Doe-1" and that Sklar conspired in "terminating minority workers with falsified evidence." (Pl. Opp. 9;
The Court also notes that to the extent that Doe is attempting to represent Doe-1 in any respect on the pending motions, he is not empowered to do so.
Plaintiff has also requested that this Court strike documents submitted by Defendants that disclose Plaintiffs' real names. Pursuant to this Opinion, the Order permitting Plaintiffs to proceed anonymously has been vacated. Therefore, this request is moot.
For the reasons set forth above, Defendants' Motion for Summary Judgment is granted and the Court will vacate the Order permitting Plaintiffs to proceed using pseudonyms. Plaintiff' motion to reinstate Doe-1's claims and to strike documents that reveal Plaintiffs' real names is denied. An appropriate Order follows.
Doe's burden as the non-moving party in a motion for summary judgment requires "more than just bare assertions, conclusory allegations or suspicions."
The Third Amended Complaint ("TAC") is the operative pleading in this matter, however, in an effort to liberally construe the pro se Plaintiff's allegations, the Court will review the allegations contained in Plaintiff's Second and Third Amended Complaints. (