JOSEPH H. RODRIGUEZ, District Judge.
This matter is before the Court on a motion for summary judgment filed by Defendant FedEx Ground Package Systems, Inc. (incorrectly captioned originally as FedEx Ground). Having considered the parties' submissions, the Court decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons stated below, this Court grants Defendant's motion for summary judgment.
Plaintiff Donald Russell, who is African-American, was employed by Defendant from June 11, 2007 until his termination on or about April 29, 2016. At the time of his termination, Plaintiff was an Operations Manager at the FedEx Ground location in Barrington, New Jersey. His immediate supervisor was Sort Manager Keith Davis, who is also African-American. Davis reported to Assistant Senior Manager Pete Adams, who in turn reported to Timothy Norton, the senior manager of the facility.
In October of 2015, Adams allegedly engaged in a verbal altercation with Plaintiff. Prior to this incident, Adams had commented that Plaintiff's car and a vacation he took must have been expensive. Plaintiff interpreted these comments as racially motivated. Soon after the October 2015 incident, another employee advised Plaintiff that Adams remarked about Plaintiff, "I can't stand that nigger, I'm going to get his black ass."
Plaintiff allegedly reported the comment to Norton. After doing so, Plaintiff received allegedly unwarranted disciplines. Plaintiff complained to a human resources manager, Edward Donahue, who is African-American, that he believed he was being retaliated against; Donahue left Defendant's employ "a few weeks later," on or about August 4, 2015. On January 7, 2016, Plaintiff was placed on a 90-day Performance Improvement Plan ("PIP"), administered by Davis. In February of 2016, Plaintiff allegedly again complained to human resources, this time to Mandy Knight, also African-American. Plaintiff was terminated on April 29, 2016 for alleged performance issues.
In this case, Plaintiff asserts claims for racial harassment in violation of NJLAD, retaliatory harassment in violation of NJLAD, retaliatory discharge in violation of NJLAD, and a request for equitable relief.
"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). Thus, the Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56 (c)(1)(A).
An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. 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. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F.Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party.
Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that "an adverse party cannot produce admissible evidence to support the [alleged dispute of] fact." Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).
In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
The NJLAD "was enacted with the express purpose of protecting civil rights, particularly in the area of employment discrimination, where the NJLAD declares that the opportunity to gain employment without fear of discrimination is a civil right." Thurston v. Cherry Hill Triplex, 941 F.Supp.2d 520, 534 (D.N.J. 2008); see Fuchilla v. Layman, 537 A.2d 652, 660 (N.J. 1988) ("[T]he overarching goal of the [NJLAD] is nothing less than the eradication `of the cancer of discrimination.'") (quoting Jackson v. Concord Co., 253 A.2d 793, 799 (N.J. 1969)).
The New Jersey Supreme Court has explained that the NJLAD is broad remedial legislation, designed to prohibit employers from discriminating against employees with respect to the terms and conditions of their employment on the basis of a protected characteristic, such as race, religion, age, sex, and disability. See Quinlan v. Curtiss-Wright Corp., 8 A.3d 209, 220 (N.J. 2010) ("We have been vigilant in interpreting the [NJLAD] in accordance with that overarching purpose, and in recognition that it is . . . remedial legislation that was intended to be given a broad and liberal interpretation."); see also N.J. Stat. Ann. § 10:5-12(a) (listing the various protected classes under the NJLAD).
Workplace discrimination claims brought under the NJLAD are analyzed under the flexible burden-shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Viscik v. Fowler Equipment Co., 800 A.2d 826 (N.J. 2002) (adopting McDonnell Douglas framework for NJLAD employment discrimination cases). Under the McDonnell Douglas framework, a plaintiff has the initial burden of establishing a prima facie case of discrimination by pointing to evidence in the record sufficient to create a genuine factual dispute that "s/he suffered an adverse employment action . . . under circumstances that could give rise to an inference of intentional discrimination" on the basis of race. Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008); accord Iadimarco v. Runyon, 190 F.3d 151, 163 (3d Cir. 1999) (requiring plaintiff who alleges reverse race discrimination to present "sufficient evidence to allow a reasonable fact finder to conclude . . . that the defendant treated [plaintiff] less favorably than others because of his race").
The oft-cited elements of a prima facie case of racial discrimination are that a plaintiff: (1) is a member of a protected class; (2) was qualified for the position; (3) suffered an adverse employment decision; and (4) the adverse employment action was made under circumstances that give rise to an inference of unlawful discrimination. Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 412 (3d Cir. 1999). Similarly, to establish a prima facie case of retaliation under the NJLAD, a plaintiff must show: (1) he belonged to a protected class; (2) he engaged in protected activity, which was known to the employer; (3) he was subjected to an adverse employment consequence; and (4) a causal link exists between the protected activity and the adverse employment consequence. Victor v. State, 4 A.3d 126, 141 (N.J. 2010). To assess causation, in addition to looking at temporal proximity, the Court must consider "with a careful eye . . . the specific facts and circumstances encountered." Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 n.5 (3d Cir. 2000).
If a plaintiff makes out a prima facie case, the burden shifts to the defendant employer to provide a legitimate, non-discriminatory reason for its employment decision. McDonnell Douglas, 411 U.S. at 802-03. If the employer meets its burden of articulating a legitimate, nondiscriminatory reason for the adverse employment action, the burden shifts back to the plaintiff to demonstrate that the employer's proffered reason for the adverse employment action was pretextual. Id. To establish pretext under the summary judgment standard, a plaintiff must either (1) offer evidence that "casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication," or (2) present evidence sufficient to support an inference that "discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994). To meet that burden, a plaintiff "cannot simply show that the employer's decision was wrong or mistaken." Id. at 765.
"When a black plaintiff alleges hostile work environment racial harassment under the LAD, []he must demonstrate that the defendant's `conduct (1) would not have occurred but for the employee's [race]; and [the conduct] was (2) severe or pervasive enough to make a (3) reasonable [African American] believe that (4) the conditions of employment are altered and the working environment is hostile or abusive.'" Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005) (citing Taylor v. Metzger, 706 A.2d 685, 688-89 (N.J. 1998) (quoting Lehmann v. Toys `R' Us, Inc., 626 A.2d 445, 453 (N.J.1993)) (modifications in original)). "`[O]ffhanded comments, and isolated incidents (unless extremely serious)' are not sufficient to sustain a hostile work environment claim." Caver, 420 F.3d at 262 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). "Rather, the `conduct must be extreme to amount to a change in the terms and conditions of employment. . . .'" Id. In determining whether the conduct at issue is sufficiently extreme, the Court must consider the "totality of the circumstances." Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). "The types of circumstances we consider `may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Caver, 420 F.3d at 262-63 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
As outlined above, Plaintiff bases his discrimination claim on three incidents: (1) Adams' comment on the cost of Plaintiff's new Jeep Wrangler; (2) Adams' comment on the cost of Plaintiff's February 2015 10-day Mediterranean vacation; and (3) Adams allegedly told another employee, "I can't stand that nigger, I'm going to get his black ass."
Plaintiff concedes that race was never mentioned in any conversation he had with Adams. He imputed race into the two comments Adams made to him because "by the way he said it to me, it led me to believe that a black person shouldn't be able to afford [it]." (Pl. Dep., 18:6-8.)
According to Plaintiff, sometime is 2015
(Pl. Dep., 17:25-18:8.)
In February 2015, shortly after Plaintiff returned from a 10-day overseas vacation with his wife, Adams made the second comment which Plaintiff relies on for his harassment claim:
(Pl. Dep., 18:18-19:10.)
When asked if Adams said anything else during either of these two incidents that led him to infer racial animus, Plaintiff confirmed he did not:
(Pl. Dep., 20:9-12.)
(Pl. Dep., 22:15-23:3.)
When asked if Plaintiff ever heard Adams comment on his race — or on anyone's race — during the entire time they worked together, Plaintiff confirmed he had not.
(Pl. Dep., 23:14-16.)
(Pl. Dep., 24:12-23.)
The third comment was not made to Plaintiff himself. Rather Plaintiff asserts that Adams made the derogatory comment to Brian Flem, who then told Marjorie Jones, who told Francine Winthers, who informed Plaintiff.
(Pl. Dep., 33:5-36:1.) However, each of these individuals denies this.
As testified by Pete Adams:
(Adams Dep., 13:9-22.)
Brian Flem was also deposed:
(Flem Dep., 17:3-18:10.)
Marjorie Jones corroborated as follows:
(Jones Dep., 16:7-17:4; 19:7-11.)
Finally, Francine Winthers denies that she told Plaintiff about the derogatory remark:
(Winthers Dep., 11:8-12:3; 12:20-13:9; 14:4-21.)
Even viewed as a whole, these three alleged circumstances cannot form the basis of a hostile work environment claim. Two of the three comments were non-racial and not so severe or pervasive as to alter the conditions of Plaintiff's employment. The third constitutes an unsworn hearsay statement, which would be inadmissible at trial and therefore is insufficient to defeat a motion for summary judgment. See Boyle v. Penn Dental Med., 689 F. App'x 140, 144 (3d Cir. 2017); Garcia v. Newtown Twp., 483 F. App'x 697, 704 (3d Cir. 2012); Bristol v. Settle, 457 F. App'x 202, 204 (3d Cir. 2012); Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir. 2009).
Regarding alleged retaliation, there is no support in the record for a causal link between any complaints Plaintiff may have made and his PIP or termination. In contrast, Defendant has thorough documentation of its reasons for terminating Plaintiff for inadequate performance during his 90day PIP.
First, an employer's decision to place an employee on a PIP does not itself constitute an adverse employment action when the PIP is comprised of directives relating to the employee's preexisting responsibilities. Reynolds v. Dep't of the Army, 439 F. App'x 150 (3d Cir. 2011). Next, Plaintiff was placed on a PIP approximately six months after complaining to Donahue, which would mean that his PIP was put in place over six months after he allegedly complained to Norton. Accordingly, the Court finds no temporal proximity between any complaints Plaintiff may have made and his PIP to infer retaliatory harassment.
As to the claim of retaliatory discharge, Plaintiff's performance deficiencies appear to have given Defendant a legitimate, nondiscriminatory basis for his termination. Areas targeted as needing improvement included: providing timely responses to supervisors' questions, completing daily tasks, meeting deadlines, properly filing damaged package reports, meeting total labor hour goals, and missing misload metrics. Davis noted that Plaintiff achieved his metric scanning goal, but otherwise "did not meet or exceed the expectations set for him. " Further, Plaintiff "did not take the time out to develop himself during the PIP or spend additional time with his direct manager to improve throughout the PIP." In response, Plaintiff has failed to show that the reasons advanced by Defendant for his termination were a pretext for discrimination.
Finally, as discussed here, there are no grounds for this Court to issue a declaratory judgment to the effect that any practices of the Defendant violated New Jersey law.
For these reasons, Defendant's motion for summary judgment will be granted. An appropriate Order will accompany this Opinion.
