FREDA L. WOLFSON, District Judge.
This matter comes before the Court on a motion, pursuant to Federal Rule of Civil Procedure 56, filed by Defendants Shore Cab, LLC ("Shore Cab"), Afzal Mohamed, Mustaq Mohamed, and Mohammed Khan (collectively, "Defendants"),
For the following reasons, Defendants' motion for summary judgment is granted in part and denied in part. Specifically, Defendants' motion for summary judgment on Counts V, VI, VIII, IX, XI, XIV and XIX is granted. Defendants' motion for summary judgment on Counts I, II, and XII is granted with respect to Plaintiff's complaint of racial discrimination based upon allegedly receiving a reduced number of fares, but it is denied with respect to Plaintiff's complaint of religious discrimination when he was allegedly terminated by Shore Cab.
The following facts are undisputed unless otherwise noted. In April 2008, Defendants hired Simon to work as a taxi driver for Shore Cab. Defendants' Statement of Material Facts [hereinafter "SOMF"] ¶ 1. Simon identifies as "black" and a "Christian." Id. at ¶¶ 26, 45. Prior to hiring Simon, Defendants
During his employment by Shore Cab, Simon wore "religious hats" and expressed his religious beliefs by making statements about whether certain acts were "godly" or "ungodly." Id. at ¶¶ 49, 50. The parties disagree over whether Defendants ever indicated they disapproved of Plaintiff's religious expression. Id. at ¶ 53. Plaintiff contends that when he wore hats with religious messages, the individual defendants would not "talk normally face-to-face [with him] or standing face-to-face" next to him.
In or around November 2009, Simon overheard another Shore Cab driver utter a racial epithet over the Shore Cab radio.
Simon Dep. T28:1-20.
On or about November 10, 2009, Simon "talked to the boss" (who Simon identified as both Mohammed Khan and Mustaq Mohamed), about the use of the racial slur on the radio and, following that complaint, "from there [Simon] start[ed] having [a] problem." Id. at T24:22-25:3; T25:25-26:6; T26:24-27:4; T27:9-14. Simon contends that Defendants "didn't do anything" regarding his complaint. Id. at 30:3-31:19. Defendants deny that Simon ever complained to them about the racial epithet he heard on the radio. See Mohammed Khan Dep. T19:10-24; T20:25 to 21:2; Mustaq Mohamed Dep. T12:2-11.
Following his oral complaint, Simon asserts that Defendants retaliated against him by instructing dispatchers to reduce the number of fares that he received in Shore Cab's line up. Simon Dep. T55:7-19. Simon gave the following example of his "mistreatment" in Shore Cab's line up:
Id. at T41:16 to 42:2. From November 10, 2009 to December 17, 2011, Simon wrote approximately 19 letters to Defendants to complain about the mistreatment he perceived that he was receiving in the Shore Cab line-up, although none of these letters mentioned discrimination based on race or religion.
Simon stopped working for Shore Cab in May 2012; the parties dispute both the facts that lead up to his end of employment and whether Simon was terminated.
According to Simon, the incident began with a fight, over the radio, between himself and a dispatcher because the dispatcher skipped him in the lineup and assigned a fare to another driver. Simon Dep. T58:12 to 61:3. Simon denied that he called the dispatcher a "bitch," id. at T58:3-5, but testified that he told her: "I said to her I know you don't do it on your own. The boss is making you doing it. They call him daddy. I said daddy making you do it. They call him sugar daddy. They call him sugar daddy." Id. at T59:21-25. The dispatcher responded that Simon would be taken "off the air." Id. at T60:1-16. Simon became frustrated because the other drivers were "clicking" their radios' microphones, so he went to the Long Branch train station and talked with another cab driver, whose name Simon could not recall. Id. at T44:21 to 45:8; T59:16-21; T60:16-18.
According to Simon, while he was at the train station, Defendant Afzal Mohamed approached Simon's car on foot, leaned into Simon's cab, and "started shooting words" at Simon, asking him what he was doing there and whether he was clicking his radio. Id. at T45:14 to 46:3; T60:16-21. Simon claims Afzal Mohamed opened his cab door and started to break Simon's electronic equipment and told Simon "why don't you eat your F hat."
According to Afzal Mohamed, Simon's separation from Shore Cab began when Simon was fighting with a dispatcher and insulting the dispatcher's parents. Afzal Mohamed Dep. T25:8-21. Afzal Mohamed told Simon to stop, and when Simon did not, Afzal Mohamed told Simon that he would be "check[ed] out" for the day. Id. at T25:18-21. After being checked out, Simon allegedly went to the Long Branch train station, which was "about a block" away from Shore Cab's offices, and keyed his radio microphone to disrupt Shore Cab's dispatching of other cabs. Id. at T25:22 to 26:4. Afzal Mohamed claims that he went to Simon's cab and asked him to stop keying the microphone, and "reached" for the microphone to take it away from Simon. Id. at T26:4-14. Afzal Mohamed denied that he told Simon to "eat his fucking hat." Id. at T27:6-8. Afzal Mohamed claims Simon called the police, and they went to court, and that a week later Simon had "check[ed] in" and Afzal Mohamed told the dispatcher on duty to tell Simon to "come to the base" because Afzal Mohamed wanted to talk to him, but Afzal Mohamed "never hear[d] from him again." Id. at T26:15-20.
The parties agree that after the incident, Simon filed charges against Afzal Mohamed in municipal court and that those charges were settled. SOMF ¶¶ 22-23.
Sometime thereafter, Plaintiff filed a complaint with the EEOC. SOMF ¶ 19. The EEOC investigated Plaintiff's claim, determined that it was unable to conclude that any statute was violated, and issued a right to sue letter on July 25, 2013. Id. at ¶¶ 19, 20. Plaintiff filed this action on November 22, 2013,
On December 27, 2013, Defendants filed a motion to dismiss several of the Counts of Plaintiff's Complaint. On June 19, 2014, this Court issued an Order dismissing Counts III, IV, VII, X, XIII, XV, XVI, XVII, XVIII, XX, XXI and XXII of Plaintiff's Complaint. See Simon v. Shore Cab, LLC, No. 13-6290, 2014 U.S. Dist. LEXIS 83435 (D.N.J. June 19, 2014). On August 14, 2015, Defendants filed the instant motion seeking judgment on the remaining counts of the complaint, alleging intentional discrimination under Title VII and Section 1981 (Counts I, II, and XII), hostile work environment under Title VII and Section 1981 (Counts V, VI, and XIX), retaliation under Title VII and Section 1981 (Counts VIII, IX, and XIV), and retaliation under CEPA (Count XI).
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." When applying this standard, the court must examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health System v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989) (the non-movant must present affirmative evidence — more than a scintilla but less than a preponderance — which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322; see also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). The non-moving party "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue." Garcia v. Kimmell, 381 F. Appx. 211, 213 (3d Cir. 2010) (quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)).
When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Defendants first argue that Plaintiff was an independent contractor and, therefore, this Court should grant "their motion for summary judgment on this basis alone." Def. Br. 6-7. Plaintiff argues that he has alleged the he was an employee of Shore Cab, that Shore Cab set the prices and published a policy in Plaintiff's cab, and that Defendants have not submitted any contract establishing Plaintiff as an independent contractor, nor provided an analysis of relevant factors that are required to show whether Plaintiff was an independent contractor. Pl. Opp. Br. 10.
As a preliminary matter, even if there were no dispute regarding whether Plaintiff was an independent contractor of Shore Cab, that determination would not be dispositive of all of Plaintiff's claims. While the Court could grant judgment on Plaintiff's claims under Title VII (Counts I, VI, IX), it could not grant judgment on Plaintiff's claims under Section 1981 (Counts II, V, VII, XIV, and XIX) or CEPA (Count XI) solely on the basis of Plaintiff's status as an independent contractor. See Brown v. J. Kaz, Inc., 581 F.3d 175, 179-81 (3d Cir. 2009) (concluding that plaintiff was an independent contractor, not an employee of defendant and, therefore, not protected by Title VII, but holding that "an independent contractor may bring a cause of action under section 1981 for discrimination occurring within the scope of the independent contractor relationship"); D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 114 (2007) (reaffirming the appropriateness of the test set forth in Pukowsky v. Caruso, 312 N.J.Super. 171 (App. Div. 1998) "for assessing the status of an alleged `independent contractor' claiming protection as an `employee' under CEPA.").
The common law of agency controls the analysis of whether an individual is an independent contractor and, thus, outside the protections of Title VII. See Pavlik v. Int'l Excess Agency, Inc., 417 F. Appx. 163, 166 (3d Cir. 2011) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-24 (1992)). To make this determination, the Court must consider the following, non-exhaustive list of factors outlined in Darden:
Darden, 503 U.S. 318, 323-24 (1992); Faush v. Tuesday Morning, Inc., 808 F.3d 208, 214 (3d Cir. 2015). In analyzing the above factors, the Third Circuit has "generally focused" on "which entity paid [the employees'] salaries, hired and fired them, and had control over their daily employment activities." Faush, 808 F.3d at 214 (quoting Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 119 (3d Cir. 2013) (internal quotation marks omitted). "However, [s]ince the common-law test contains no shorthand formula or magic phrase that can be applied to find the answer, . . . all of the incidents of the relationship must be assessed and weighed with no one factor being decisive." Id. (quoting Darden, 503 U.S. at 324) (internal quotation marks omitted).
The parties' briefing provides little analysis of the Darden factors, and even fewer citations to the record concerning the factors they do address. Moreover, even if this Court were able to rule on the issue of Plaintiff's status as an independent contractor, it would also have to analyze whether Plaintiff could still be considered an "employee" for purposes of CEPA under the Pukowsky factors,
Defendants have moved for summary judgment on Plaintiff's claims of intentional discrimination (Counts I, II, and XII), arguing that there is no direct evidence that demonstrates racial or religious discrimination by Defendants and that Plaintiff suffered no adverse employment action. Def. Br. 8-10. Plaintiff argues, however, that he has satisfied his burden of showing his prima facie claims of intentional discrimination. Pl. Opp. Br. at 11-12.
Under both Title VII and Section 1981, in the absence of direct evidence, claims of racial and religious discrimination are examined under the burden shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-05 (1974). See Sanborn v. Postmaster Gen. of the United States, 431 F. Appx. 188, 190 (3d Cir. 2011); Pamintuan v. Nanticoke Memorial Hosp., 192 F.3d 378, 385 (3d Cir. 1999); see also Schurr v. Resorts Intern. Hotel, Inc., 196 F.3d 486, 499 (3d Cir. 1999) ("[T]he elements of employment discrimination under Title VII are identical to the elements of a Section 1981 claim.").
Under that framework, a plaintiff has the burden of establishing a prima facie case of discrimination by proving: "(1) he is a member of a protected class; (2) he suffered some form of adverse employment action; and (3) this action occurred under circumstances giving rise to an inference of unlawful discrimination that might occur when nonmembers of the protected class are treated differently." Carter v. Midway Slots & Simulcast, 511 F. Appx. 125, 128 (3d Cir.), cert. denied, ___ U.S. ___, 134 S.Ct. 138 (2013). If the plaintiff succeeds in establishing a prima facie case, then the burden of production shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for the adverse employment action. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). If the defendant makes such a showing, the plaintiff must then demonstrate by a preponderance of the evidence that the stated nondiscriminatory rationale was "merely a pretext for discrimination, and not the real motivation for the unfavorable job action." Sarullo v. United States Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003), cert. denied, 541 U.S. 1064 (2004)
Here, Plaintiff argues that he suffered two forms of adverse employment action that are the product of both religious and racial discrimination: (1) reduced number of fares, and (2) termination.
Plaintiff has failed to satisfy his burden of proving racial and religious discrimination with respect to his claim that he received a reduced number of fares. Plaintiff offers no evidence, other than his own self-serving speculation, to show that he suffered any reduction in the amount of fares he received from Shore Cab. See Atkinson v. N. Jersey Developmental, 453 F. Appx. 262, 265-66 (3d Cir. 2011); see also Gonzalez v. Sec'y of Dep't of Homeland Sec., 678 F.3d 254, 263 (3d Cir. 2012) ("[C]onclusory, self-serving affidavits [and testimony] are insufficient to withstand a motion for summary judgment. . . . In this case, Gonzalez's own, sworn statements are insufficient to survive summary judgment."). For example, Plaintiff failed to submit any evidence demonstrating either that other drivers received a greater share of the dispatched fares during the relevant period, or that the amount of Plaintiff's fares were more numerous prior to the alleged discriminatory period. Accordingly, this Court need not engage in McDonnell Douglass's burden-shifting analysis.
However, Plaintiff's claim of religious discrimination resulting in his alleged termination is not based solely on circumstantial evidence and, therefore, does not implicate the McDonnell Douglass test. Instead, Plaintiff relies on direct evidence that Afzel Mohamed told Plaintiff to "eat his F hat," which had religious expressions on it, during the altercation that Simon claims ended with his alleged termination.
Under the . . . "mixed-motive" analysis, if the plaintiff shows "by direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision," the burden shifts to the defendant "to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor." In order to trigger a mixed-motive framework, "a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that `race, color, religion, sex, or national origin was a motivating factor for any employment practice.'"
Id. (citations omitted) (emphasis added in original).
Here, granting Plaintiff all reasonable inferences, this Court concludes that Plaintiff has presented sufficient evidence from which a jury could conclude that his religion was a motivating factor in his alleged termination.
Even assuming, arguendo, that Defendants would argue that the outcome of the altercation with Plaintiff would have been the same even absent any illegitimate factor, those are disputed material issues of fact that are left for the trier of fact to determine. Scant though the evidence supporting Plaintiff's claim of intentional discrimination may be — resting on the disputed, single utterance by Afzel Mohamed during a host of other disputed circumstances — this Court cannot weigh the parties' credibility and determine whether Simon or Mohamed Afzel's version of events is true, or whether Mohamed Afzel's actions in May 2012 that allegedly resulted in the end of Plaintiff's employment were motivated by an invidious discriminatory animus.
Accordingly, Defendants' motion for summary judgment with respect to Counts I, II, and XII of the Complaint will be granted in part and denied in part. Specifically, Defendants' motion is granted with respect to Plaintiff's complaint of racial discrimination in the form of reduced number of fares, but it is denied with respect to Plaintiff's complaint of religious discrimination when he was allegedly terminated by Shore Cab.
Defendants also move for summary judgment on Plaintiff's claims of hostile work environment (Counts V, VI, and XIX), arguing that (1) Plaintiff has only provided evidence of a single incident of a racial epithet being used by a driver at Shore cab on a radio transmission, which was not directed at Plaintiff, and (2) that Defendants can only be held liable for the driver's racial epithet if they were negligent in controlling work conditions. Def. Br. 10-13.
However, Plaintiff's opposition brief contains no legal or factual argument opposing summary judgment on these counts and, accordingly, this Court deems these claims abandoned. See Damiano v. Sony Music Entertainment, 975 F.Supp. 623, 627 (D.N.J. 1996); see also Franco v. Conn. Gen. Life Ins. Co., No. 07-6039, 2014 U.S. Dist. LEXIS 85595, *10 n.3 (D.N.J. June 24, 2014); Rhino Assocs., L.P. v. Berg Mfg. & Sales Corp., 482 F.Supp.2d 537, 549 n.14 (M.D. Pa. 2007); Taylor v. City of New York, 269 F.Supp.2d 68, 75 (E.D.N.Y. 2003). Moreover, it appears that the record fails to show the "severe and pervasive" discrimination necessary to support a hostile work environment claim. Insidious as it may be, Plaintiff heard the word "nigger" only once in his place of employment, which he acknowledges was not specifically directed at him, and although he contends his complaint concerning the incident was not properly investigated, he fails to point to another instance of a similar complaint that was not investigated by Defendants. See Huggins v. Coatesville Area Sch. Dist., 452 F. Appx. 122, 127 (3d Cir. 2011) (holding that to support a hostile work environment claim, the harassment must be so "severe and pervasive" that it "alter[s] the conditions of his employment" and creates "an abusive working environment" and noting that "[o]ffhand comments[] and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment") (citations omitted); Caver v. City of Trenton, 420 F.3d 243, 263 (3d Cir. 2005) ("[C]omments referring to other individuals that were merely overheard by [plaintiff] are the sorts of `offhanded comments and isolated incidents' that the Supreme Court in [Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)], cautioned should not be considered severe or pervasive enough to constitute a hostile work environment.").
Accordingly, the Court grants Defendants' motion for summary judgment on Counts V, VI, and XIX of the Complaint.
With respect to Plaintiff's claims of retaliation (Counts VIII, IX, and XIV), Defendants argue that Plaintiff never complained to them concerning the radio incident and that Plaintiff was not terminated, but rather chose not to return to work voluntarily. Def. Br. 13-14. Plaintiff argues that he did complain to Defendants and, but for that complaint, he would not have received a reduced number of fares or, ultimately, been terminated. Pl. Opp. Br. at 12-13.
Like discrimination claims, in the absence of direct evidence, retaliation claims under Title VII and Section 1981 are also examined under the McDonnell Douglass burden-shifting test. See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278-79 (3d Cir. 2000); Doe v. Sizewise Rentals, LLC, No. 09-3409, 2012 U.S. Dist. LEXIS 50089, *14-15 (D.N.J. Apr. 10, 2012), aff'd, 530 F. Appx. 171 (3d Cir. 2013). "[T]o establish a prima facie retaliation claim under Title VII [and] § 1981, . . . [a plaintiff] 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." Hutchins v. United Parcel Services, Inc., 197 F. Appx. 152, 156 (3d Cir. 2006) (quoting Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)). The employer can rebut the employee's prima facie case by asserting a legitimate, nondiscriminatory reason for the employment action. See Marra v. Phila. Hous. Auth., 497 F.3d 286, 300-01 (3d Cir. 2007); Doe, 2012 U.S. Dist. LEXIS 50089 at *15. The burden then shifts back to the plaintiff to show by a preponderance of the evidence that the reasons offered by the employer are merely a pretext for discrimination. See Marra, 497 F.3d at 342; Doe, 2012 U.S. Dist. LEXIS 50089 at *15.
There is clearly a dispute of fact concerning the first element of Plaintiff's prima facie case, as the parties do not agree whether Plaintiff ever complained of the radio incident to Defendants.
Moreover, even if this Court were to consider Plaintiff's letters of complaint concerning his mistreatment in the lineup as an extenuation of his original, oral complaint in 2009,
Accordingly, the Court grants Defendants' motion for summary judgment on Counts VIII, IX, and XIV of the Complaint.
Finally, on Plaintiff's claim for violation of CEPA (Count XI), Defendants argue that Plaintiff has failed to submit evidence that Defendants' engaged in activity that violated a law or regulation, that Plaintiff engaged in whistle-blower activity, that there was any adverse employment action taken against him, and that Plaintiff has failed to established a causal connection between his complaint and any adverse employment action. Def. Br. 14-17. Plaintiff argues that he has provided adequate evidence to support his prima facie case under CEPA. Pl. Opp. Br. at 13-15.
CEPA was enacted "to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employees from engaging" in such activity. Abbamont v. Piscataway Twp. Bd. of Ed., 138 N.J. 405, 431 (1994); see also Higgins v. Pascack Valley Hospital, 158 N.J. 404, 417 (1999). To succeed on a CEPA claim, a plaintiff must prove four elements: (1) that the plaintiff reasonably believed that employer's conduct violated a law or regulation; (2) that the plaintiff performed "whistle-blowing activity" as defined in CEPA; (3) that an adverse employment action has been taken against him or her; and (4) that the whistle-blowing activity caused such adverse employment action. See Dzwonar v. McDevitt, 177 N.J. 451, 4632 (2003); Kolb v. Burns, 320 N.J.Super. 467, 476 (App. Div. 1999). Once a plaintiff has established a prima facie case under CEPA, courts employ the burden-shifting analysis, outlined above, that is used in federal discrimination cases involving "pretext" claims. Blackburn v. United Parcel Services, Inc., 179 F.3d 81, 92 (3d Cir.1999).
Although CEPA has a waiver provision that prevents Plaintiffs from bringing duplicative retaliation claims in addition to CEPA claims, N.J.S.A. 34:19-8, that provision does not apply to Plaintiff's retaliation claims arising under federal law. Skoorka v. Kean Univ., No. 09-3428, 2015 U.S. Dist. LEXIS 71697, *40-41 (D.N.J. June 2, 2015); Anderson v. Mercer Cnty. Sheriff's Dep't, No. 11-7620, 2012 U.S. Dist. LEXIS 83397, *14-15 (D.N.J. June 15, 2012). Nevertheless, Plaintiff's CEPA claim for retaliation fails, substantively, for the same reasons his federal retaliation claims fail, as set forth above — namely, Plaintiff's failure to establish the requisite causal connection.
Accordingly, the Court grants Defendants' motion for summary judgment on Count XI of the Complaint.
For the foregoing reasons, Defendants' motion for summary judgment is granted in part and denied in part. Specifically, Defendants' motion for summary judgment on Counts V, VI, VIII, IX, XI, XIV and XIX is granted. Defendants' motion for summary judgment on Counts I, II, and XII is granted with respect to Plaintiff's complaint of racial discrimination in the form of reduced number of fares, but it is denied with respect to Plaintiff's complaint of religious discrimination when he was allegedly terminated by Shore Cab.
