NOEL L. HILLMAN, District Judge.
This is an employment retaliation suit brought under the New Jersey Law Against Discrimination (NJLAD) and the Family and Medical Leave Act (FMLA) by former drivers for Defendant FedEx Freight. Before the Court is Defendant's Motion for Summary Judgment. For the reasons that follow, the Court will grant summary judgment in favor of Defendant.
Unless otherwise indicated, the Court takes its facts from Defendant's Statement of Material Facts and Plaintiffs' Response. From November 2003 to May 2015, Shinn was what is referred to in the record as a "City Driver" for FedEx at its Delanco, New Jersey Service Center. From 2004 to July 2015, Ellis was also a City Driver for FedEx at its Service Center. In general, FedEx City Drivers pick up and deliver freight to customers.
FedEx maintained an Electronic Employee Handbook accessible to employees, which included anti-discrimination/retaliation and standards of conduct policies. Shinn and Ellis signed forms acknowledging FedEx's Electronic Employee Handbook, which included references to those policies. FedEx employees also received training on workplace violence. Shinn and Ellis both signed forms acknowledging FedEx's Workplace Violence policy. On March 20, 2015, FedEx discussed workplace violence in a pre-shift meeting with drivers at the Service Center. Plaintiffs signed a form acknowledging their attendance at this meeting.
On April 30, 2015, FedEx employee Jeremy Homan reported to Service Center Manager Chuck Long that an incident had occurred between Steve Buckley, another FedEx City Driver, and Shinn in the break room the previous day. Other employees also reported the incident to Long. As a result, FedEx Security Specialist Charles Bergeron investigated the incident on May 7, 2015, which included interviewing Shinn, Ellis, Buckley, and eleven others who were present in the break room at the time of the incident.
Shinn testified at his deposition that on the day of the incident Shinn was sitting at his regular table with Ellis and some other drivers. (Tr. at 29-30). Buckley then came in and walked over to Homan. (Tr. at 31). Buckley "said something about Facebook fag or something like that or union fag," at which point Shinn said "what are you talking about." (Tr. at 31). Buckley then "came over to the table and he stuck his finger out, he said I'm talking about you and your girlfriend, Paul Ellis." (Tr. at 31).
(Tr. at 31-35). There was thereafter a less heated conversation on the dock, in which Shinn asked if Buckley wanted to talk about it, but Buckley declined. (Tr. at 35-36).
According to Shinn, he was called into Long's office and told that he was discharged, effective May 21, 2015, due to the incident with Buckley. Shinn later filed an internal appeal of his termination with FedEx's Termination Appeal Review Committee (TARC), which upheld his termination. Defendant contends the legitimate reason for Shinn's termination was that he made a threat that violated its workplace violence policy.
On June 29, 2015, a FedEx employee gave Long a printed screenshot of Facebook postings made by Ellis and Shinn on June 28, 2015, which read:
Long was concerned about the message, taking it as a workplace violence incident. Accordingly, he forwarded it to Employee Relations Manager Brian Jenkins. Bergeron investigated. According to Bergeron, Ellis admitted he recognized the post, but claimed he meant that Buckley could get injured because he was not paying attention on the dock. However, according to Bergeron, Ellis advised that he could see how the words he used could be perceived as a threat.
FedEx determined that Ellis's comments in the Facebook post violated the workplace violence provisions in its Conduct of Employees policy. Consequently, FedEx discharged Ellis effective July 9, 2015. Ellis admitted that FedEx's policy prohibiting workplace violence states that it is not limited to physical assaults, but could include written or spoken threats. He also admitted that the policy provides that FedEx could discharge employees for incidents of workplace violence. Ellis filed an internal appeal of his termination with FedEx's TARC, which upheld his termination. Defendant contends this is the legitimate reason for Ellis's termination.
Ellis has spinal injuries that cause him significant back and neck problems. (Tr. at 109). Consequently, Ellis was approved for FMLA leave during his employment with Defendant. (Tr. at 109). He was also approved for leave to take care of his sick mother, again under FMLA. (Tr. at 111-12).
On May 22, 2015, Ellis called out sick because of pain. (Tr. at 123-25). Either the day before or the day before that, he had called out to take care of his mother. (Tr. at 140). Later that day, Ellis saw messages on Facebook from Roy Fonseca, another driver, saying Defendant had Ellis lined up to make deliveries to the retailer BJ's. (Tr. at 125). When Ellis told Fonseca he was not making it in, Fonseca told him Jenkins was mad. (Tr. at 129). Ellis questioned why a "9 o'clock start guy" would be taking that trailer, since he estimated it was loaded around 5:00 AM. (Tr. at 128). Ellis stated it was not on his normal run delivery area. (Tr. at 128).
Ellis said that while some guys like going to BJ's, he "cannot deal with that because [he] h[as] to sit for hours and hours and hours in the driver's room, waiting and waiting and waiting for that to get unloaded." (Tr. at 130). He has told people, including Brian McGee and Long, that he does not want to go to BJ's. (Tr. at 135). He estimated that he has done a BJ's delivery more than five times, but was unable to estimate whether he had done a delivery there more or less than ten times. (Tr. at 136).
(Tr. at 136-37). When asked whether there were other occasions when he had full trailers, he said "[t]ypically, no. Because that would be considered a volume run, and that would go out to somebody that had earlier start time." (Tr. at 138).
Ellis contends that FMLA leave was the reason for the termination of his employment — that "they got tired of [him] inconveniencing them with taking random time off, it monkey-wrenched their schedule." (Tr. at 141-42). He based this on the times he had "paybacks for taking off" and "just the attitudes that [he] would get from different people in management." (Tr. at 142). Ellis testified at his deposition that FedEx had a "pattern" of assigning him to BJ's or to deliver a "full trailer" to Performance Food Group or Dunkin Donuts either the next day or very soon after he took FMLA leave. He testified at his deposition:
Defendant maintains the legitimate reason for Ellis's assignment to BJ's or any other less desirable job was because of business demands. FedEx did not guarantee any driver, including Ellis, a specific route or set of customers. When practicable, FedEx tried to assign drivers to make deliveries in a customary geographic area with which they are familiar but, for business reasons, does not always do so. Business issues on any given day dictated where a driver was assigned that day since FedEx has built its business on delivering freight on time.
FedEx's Service Center sent drivers to BJ's virtually every work day. FedEx did not have a designated driver for BJ's; dozens of drivers serviced BJ's. While BJ's was not one of Ellis's customary customers, it was in the same geographic area in which he usually delivered. Ellis serviced BJ's 6 times between January 1, 2013 and July 9, 2015. FedEx assigned Ellis to BJ's both before and after he was first certified for FMLA leave on July 2, 2013.
Plaintiffs filed a state court complaint against Defendants FedEx Freight, Inc. and FedEx Corporation on January 15, 2016. On February 12, 2016, Defendants removed the case to federal court. On March 22, 2016, Plaintiffs voluntarily dismissed their claims against Defendant FedEx Corporation. Plaintiffs thereafter filed an Amended Complaint on April 13, 2016. On May 6, 2016, FedEx Freight filed a Motion to Dismiss, which this Court granted in part and denied in part on December 7, 2016. Plaintiffs thereafter filed a January 6, 2017 Second Amended Complaint, asserting three claims: (1) an FMLA claim by Ellis, (2) an NJLAD claim by both Plaintiffs, and (3) a common law wrongful termination claim by both Plaintiffs. On January 12, 2018, Defendant filed a Motion for Summary Judgment.
The Court has federal question subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331.
Summary judgment is appropriate where the Court is satisfied that "`the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any,' . . . demonstrate the absence of a genuine issue of material fact" and that the moving party is entitled to a judgment as a matter of law.
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor.
Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact.
Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial.
The Court finds summary judgment is appropriate as to all counts asserted in Plaintiffs' Second Amended Complaint. The Court begins with the NJLAD retaliation claim.
The Court will grant summary judgment on Plaintiffs' NJLAD claim for failure to establish a causal link between participation in a protected activity and any retaliation.
The NJLAD provides:
N.J.S.A. 10:5-12(d). "[T]o establish a prima facie case of discriminatory retaliation, plaintiffs must demonstrate that: (1) they engaged in a protected activity known by the employer; (2) thereafter their employer unlawfully retaliated against them; and (3) their participation in the protected activity caused the retaliation."
Under the framework of
If the employer satisfies this second step, the burden shifts back once more to the plaintiff to show, by a preponderance of the evidence, that the employer's proffered legitimate, nondiscriminatory reason was pretextual — that not only was the employer's proffered reason false, but the real reason was impermissible discrimination.
Plaintiffs' Second Amended Complaint asserts two bases for NJLAD retaliation: (1) "retaliation for participating in an investigation after an incident in the lunch room in which Plaintiffs were referred to as `union fags' and `Facebook fags'" and (2) "retaliation for raising complaints to Defendants' management and/or Human Resources concerning the lunch room incident."
Defendant argues Plaintiffs cannot use "raising complaints" concerning the incident as a basis for their NJLAD claim, as they admit they did not report the incident. It is agreed in their Statement of Material Facts that both Shinn and Ellis admitted at deposition that they did not report the break room incident to Defendant. As to Shinn, he admitted in his deposition that he did not report the incident to Defendant. (Tr. at 38). As to Ellis, he also stated he did not know who reported the incident to Defendant. (Tr. at 106). Accordingly, that leaves Plaintiffs' participation in the investigation as the sole basis for the NJLAD claim. Defendant argues that Plaintiffs cannot make a prima facie case because they have not established a causal link. The Court agrees.
Plaintiffs contend that "[t]he temporal proximity alone from the lunchroom/break room incident to the termination of the Plaintiffs creates an inference of retaliation that should be left to the jury to determine." (Pl. Br. 6). Temporal proximity alone will be insufficient to establish the necessary causal connection, however, when the temporal relationship is not "unusually suggestive."
The Court discerns the following timeline of relevant events:
The difference in time between the investigation and Shinn's discharge is two weeks. The difference in time between the investigation and Ellis's discharge is about two months. Beginning with Shinn, while two weeks under certain circumstances might be temporally close enough to the protected conduct to allow an inference of causation, that is not the case here, as the legitimate reason advanced by Defendant for Shinn's termination was his involvement in the break room incident, which occurred a little over a week before the investigation. Thus, the Court is unable to find causation based on timing alone.
As to Ellis, the time between the two events is much longer, and there was the intervening event of the June 28, 2015 Facebook post, which was much closer in time to his July 9, 2015 termination. "[I]nferring a causal relationship between the protected activity and the adverse action is not logical when the two are separated by an intervening event that independently. . . caused the adverse action."
"Differential treatment of the plaintiff and similarly situated employees can support the inference [of a causal link]."
(Tr. at 33-35).
Buckley testified as follows:
(Tr. at 29-30).
Long testified at his deposition as follows:
(Tr. at 48-50).
The Court finds these vague descriptions of the "Radie incident" to be insufficient to show differential treatment such that the Court can find a causal link. In response to a summary judgment motion, Plaintiffs must show "specific facts and affirmative evidence" demonstrating a genuine issue for trial.
Plaintiffs provide no other basis for this Court to find a causal link. The Court will therefore grant summary judgment on their NJLAD claims because they have not established their prima facie case of retaliation.
The Court also concludes Ellis's FMLA retaliation claim cannot survive summary judgment. "To state a prima facie case for FMLA retaliation, a plaintiff must show that: (1) she invoked her FMLA rights; (2) she suffered an adverse employment action; and (3) the adverse action was causally related to the plaintiff's exercise of her FMLA rights."
The Court finds that Ellis has failed to show sufficient evidence of a causal relation to survive summary judgment. It appears Ellis is alleging adverse employment action both in his termination and the earlier assignment of the BJ's trips. As to his termination, again temporal proximity alone will not suffice to show a causal link. Ellis stated he called out and was given the BJ's job on May 22, 2015 but his termination was not until July 9, 2015. Further, the Facebook post incident occurred in between those events on June 28, 2015. For those reasons stated with regard to Ellis's NJLAD claim, the temporal proximity argument also fails here.
Further, as to the BJ's and similar jobs constituting an adverse employment action, while Ellis testified that his calling out for FMLA leave followed by a BJ's or less desirable job assignment was prevalent enough to constitute a "pattern," Ellis fails to provide any specifics from which this Court could gauge whether such a practice could in fact be inferred. The Court finds the testimony that he called out on FMLA leave once and was then given a BJ's job immediately after insufficient to show differential treatment such that the Court can find a causal link. The "attitude" Ellis described was similarly vague. Being told "who would hire someone like you" does not sufficiently convey a causal link between Ellis's FMLA leave and either being assigned less desirable jobs or his termination. Summary judgment will be granted on Ellis's FMLA claim for failure to establish his prima facie case of retaliation.
Finally, the Court will also grant summary judgment on Plaintiffs' unlawful termination claim. "Common law claims for wrongful termination are pre-empted when a statutory remedy exists."
For the reasons expressed above, the Court will grant summary judgment in favor of Defendant on all of Plaintiffs' claims. An appropriate Order will be entered.
With regard to Ellis, Defendant proffers that it also terminated him for his violation of the workplace violence policy based on Facebook postings which threatened Buckley's safety on the dock. Ellis admits he made this posting, but argues that he meant that Buckley could get injured because he was not paying attention on the dock. Similar to Shinn, even if a jury accepted that Ellis did not intend his posting to be threatening to Buckley, Ellis has provided no proof that Defendant's determination that the posting violated the workplace violence policy was not legitimate and improperly motivated by discriminatory intent.
The ultimate issue is whether "discriminatory animus motivated the employer," and it is not enough to show that the employer made a "wrong or mistaken" decision.
