performance review. (Id.) Boyle also mentioned Watkins'
discrimination complaints: "[Watkins] acknowledged that he knew . . .
Mancini had reported the original incidents and that all of the engineers
involved had been counseled by their supervisors . . . [h]owever,
[Watkins] stated that he still didn't think . . . [Mancini] and I had
taken the situation seriously." (Id.) Moreover, Boyle reported that
Watkins' reassignment to work with a different group of peers had not
improved Watkins' performance level. Although Boyle considered Watkins to
be in the "developmental" category, he nonetheless "asked [Mancini] to
continue to work with [Watkins] on completion of his required tasks and
to reinforce the message to the Atlanta project team that [Watkins]
should be given the opportunity to lead that effort unimpeded by others."
On or about September 8, 1997, Nabisco placed Watkins on a 90-day
corrective action plan. (Cohen Aff., Ex. W.) Watkins was given eight key
areas in which to make improvements. (Id.) On September 29, Watkins met
with Mancini, Boyle, and Leibowitz to give them a further opportunity to
explain their expectations of Watkins during the 90-day plan. (Cohen
Aff., Ex. J.) That same day, Watkins wrote a memorandum to Mancini
detailing his disagreement with Mancini's assessment of Watkins'
performance in both his March 1997 performance review and the 90-day
corrective action plan. (Id., Ex. X.) Watkins voiced his concern that
communications with, and support from, management had broken down after
Watkins' December 1996 memorandum. (Id.)
On November 7, Watkins met with Mancini, Boyle, and Mathews to discuss
the eight point corrective action plan.*fn12 (Id., Ex. Z.) Boyle
documented this meeting in his November 10, 1997 memorandum to Watkins.
(Id.) During the meeting, Watkins was provided with sample project lists
and schedules and was required to review his progress with Mancini on a
bi-weekly basis. (Id.) Nonetheless, Mancini perceived that Watkins'
performance continued to deteriorate. In early 1998, Mancini outlined
Watkins' continued failure to meet the requirements of the corrective
action plan and recommended Watkins' termination.*fn13 (Id., Ex. BB.) As
a result, Nabisco terminated Watkins, effective January 31, 1998. (Id.,
Ex. CC; Pl.'s Rule 56.1 Statement ¶ 112.) Initially, Mancini assumed
Watkins' job responsibilities.
(Defs.' Rule 56.1 Statement ¶ 100.)
In 1999, Nabisco transferred Denard Graver, an African-American, from its
Richmond, Virginia bakery into the position of Supervisory Process
Control Engineer at its East Hanover, New Jersey facility. (Id.) Graver
assumed Watkins' job responsibilities. (Id.)
STANDARD OF REVIEW
A. FED. R. Civ. P. 56(c)
Summary judgment is appropriate under FED. R. Civ. P. 56(c) 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. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir.
1996). In making this determination, the Court must draw all reasonable
inferences — including on issues of credibility — in favor of
the non-movant. Hullett v. Towers, Perrin, Forster & Crosby, Inc.,
38 F.3d 107, 111 (3d Cir. 1994); Nat'l State Bank v. Fed. Reserve Bank of
N.Y., 979 F.2d 1579, 1581 (3d Cir. 1992); Watts v. Univ. of Del.,
622 F.2d 47, 50 (3d Cir. 1980).
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. Jersey Cent. Power & Light Co. v. Lacey Township,
772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for
summary judgment cannot rest on mere allegations and instead must present
actual evidence that creates a genuine issue as to a material fact for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Siegel
Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir.
1995). "[U]nsupported allegations in [a] memorandum and pleadings are
insufficient to repel summary judgment." Schoch v. First Fid.
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also FED. R. CIV.
P. 56(e) (requiring nonmoving party to "set forth specific facts showing
that there is a genuine issue for trial").
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." Katz v. Aetna Cas.
& Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477
U.S. at 322-23). In the employment discrimination context, "a trial court
must be cautious about granting summary judgment to an employer when . . .
its intent is at issue." Goosby v. Johnson & Johnson Medical,
Inc., 228 F.3d 313, 321 (3d Cir. 2000) (citing Gallo v. Prudential
Residential Services, Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir.
B. Allocation of burden in employment discrimination context
In proving that he was subject to unlawful discrimination, Watkins may
present either direct or indirect evidence. Pivirotto v. Innovative
Systems, Inc., 191 F.3d 344, 352 n. 4 (3d Cir. 1999).
1. Mixed motives theory
Often, where a plaintiff possesses some direct evidence of
discrimination, he seeks to prove the defendant's liability under a
"mixed motives" theory. A claim under the "mixed motives" theory requires
"direct evidence that decisionmakers placed substantial negative reliance
on an illegitimate criterion in reaching their decision." Starceski v.
Westinghouse Elec. Corp., 54 F.3d 1089, 1096 (3d Cir. 1995)
(quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989)
(O'Conner, J., concurring)). Plaintiff must therefore show "conduct or
statements by persons involved in the decisionmaking process that may be
viewed as directly reflecting the alleged discriminatory attitude." Id.
(citation omitted). Conversely, "stray remarks in the workplace, while
perhaps probative of a discriminatory ammus, cannot justify requiring the
employer to prove that its employment decisions were based on legitimate
criteria. Nor can statements by nondecisionmakers, or statements by
decisionmakers unrelated to the decisional process itself, suffice to
satisfy the plaintiffs burden in this regard . . ." Id. (quoting Price
Waterhouse, 490 U.S. at 277).
Where a plaintiff has produced direct evidence of discrimination,
however, "it is not necessary to rely on any presumption from the prima
facie case as is necessary in a pretext action." Id., (quoting Armbruster
v. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994)).
[If] the evidence as a whole permits a conclusion that
both permissible and impermissible considerations
played a role in the employer's decision, the
plaintiff need only show that the unlawful motive was
a substantial motivating factor in that decision. If
the finder of fact concludes that the plaintiff has
carried this burden, the burden of persuasion shifts
to the defendant to prove that the unlawful motive was
not a but-for cause, i.e., that the same action would
have been taken, because of legitimate
considerations, in the absence of a lawful motive.
Wilson v. Susquehanna Township Police Dept., 55 F.3d 126,
129 (3d Cir. 1995) (citing Miller v. Cigna Corp.,
47 F.3d 586, 594 (3d Cir. 1995) (en banc)).
Thus, where a plaintiff in a mixed motives case has demonstrated that his
race played a part in an employment decision, "the defendant may avoid a
finding of liability only by proving by a preponderance of the evidence
that it would have made the same decision even if it had not taken the
plaintiffs [race] into account." Id., (citing Price Waterhouse, 490 U.S.
2. Pretext theory
Comparatively, where a plaintiff alleges a "pretext" case of
discrimination, he need not produce direct evidence of
discrimination.*fn14 Rather, a pretext case "depends on circumstantial
evidence allowing the factfinder to infer that the falsity of the
employer's explanation shows bias." Starceski, 54 F.3d at 1097-98.
Thus, in a "pretext" case, plaintiff must first make a prima facie
showing of discrimination. Id. Under both Title VII and LAD
jurisprudence, "the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of discrimination."
Burdine, 450 U.S. at 252-53.
"[I]f the plaintiff succeeds in proving the prima facie case, the
burden shifts to the defendant to articulate some legitimate,
nondiscriminatory reason for the employee's rejection. . . . [S]hould the
defendant carry this burden, the plaintiff must then have an opportunity
to prove by a preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were a pretext
for discrimination." Id. at 253;
Texas Dept. Of Community Affairs v.
Burdine, 450 U.S. 248, 252-53 (1981) (quoting McDonnell-Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)); See also Baxter v. AT&T
Communications, 712 F. Supp. 1166, 1172 n. 2 (D.N.J. 1989) (recognizing
that the New Jersey Supreme Court has adopted the McDonnell-Douglas
burden shifting analysis and applied it to claims brought under the
It is important to note, however, that "the prima facie case under
McDonnell-Douglas-Burdine pretext framework is not intended to be
onerous. The prima facie case merely `raises an inference of
discrimination only because we presume these acts, if otherwise
unexplained, are more likely than not based on the consideration of
impermissible factors.'" Sempier v. Johnson & Higgins, 45 F.3d 724,
728-29 (3d Cir. 1995) (en banc) (citing Furnco Construction Co. v.
Waters, 438 U.S. 567, 577 (1978)). At trial, "[t]he ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the
plaintiff." Burdine 450 U.S. at 253.
Nonetheless, at the summary judgment stage, the burden of persuasion
rests with Nabisco as movant. See Sorba v. Pennsylvania Drilling Co.,
Inc., 821 F.2d 200, 202 (3d Cir. 1987). "To meet its burden on summary
judgment, the defendant employer must show that the plaintiff will be
unable to introduce either direct evidence of a purpose to discriminate,
or indirect evidence of that purpose by showing that the proffered reason
is subject to factual dispute. Id. at 203 (citing Chippolini v. Spencer
Gifts, 814 F.2d 893, 898-900 (3d Cir. 1987)).*fn15
A plaintiff must therefore provide proof of "pretext-only." That is,
where a plaintiff has introduced evidence sufficient to discredit the
defendant's proffered reasons, he "need not also come forward with
additional evidence beyond his or her prima facie case" in order to
survive summary judgment. Waldron v. SL Industries, Inc., 56 F.3d 491,
495 (3d Cir. 1995) (citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.
1994) (rejecting the "pretext-plus" standard requiring plaintiffs to
demonstrate "both that the employer's reasons are false and that the real
reasons were discriminatory.') Accordingly, "a plaintiff who has made out
a prima facie case may defeat a motion for summary judgment by either (i)
discrediting the proffered reasons, either circumstantially or directly,
or (ii) adducing evidence, whether circumstantial or direct, that
discrimination was more likely than not a motivating or determinative
cause of the adverse employment action." Waldron, 56 F.3d at 495 (citing
Fuentes, 32 F.3d at 764).*fn16
A. Plaintiff's Mixed Motives Theory
As noted above, in order to maintain a claim successfully for racial
discrimination under a "mixed motives" theory, Watkins must demonstrate
"conduct or statements by persons involved in the decisionmaking process
that may be viewed as
directly reflecting the alleged discriminatory
attitude." Starceski, 54 F.3d at 1096. In support of a mixed motives
analysis, Plaintiff points to a "secret file" on Watkins, which Mancini
maintained. (Pl.'s Br. at 14.) The secret file" was a three-ring binder
in which Mancini testified that he kept Watkins' evaluations and
memoranda related to the investigation of Watkins' complaints. (Mancini
Dep. at 163-64.) Plaintiff claims that because no similar documentation
had ever before been compiled about an employee, the file constitutes
evidence that Watkins was treated differently than other employees.
(Pl.'s Br. at 24.)
To the contrary, this Court is unwilling to find that the file
demonstrates direct evidence of Mancini's racial animus towards Watkins.
Watkins does not argue that the creation of the file, itself, is unusual
where an employee makes complaints of discrimination or has performance
problems. (See e.g., White Dep. at 44-47.) Similarly, Watkins does not
allege that the actual contents of the file disclose any racial animus on
the part of any Nabisco employee. In fact, at oral argument, Watkins
admitted that he possessed no direct evidence that either Mancini or
Boyle — the two decisionmakers alleged to have played a role in his
employment conditions-harbored racial animus against Watkins. (Tr. at
Accordingly, this Court finds that Mancini's file on Watkins does not
constitute direct evidence of discriminatory attitude in support of a
"mixed motives" analysis. See e.g., Fuentes v. Perskie, 32 F.3d 759, 766
(3d Cir. 1994) ("Given the frequency of employment discrimination suits,
an employer which documents its reasons for taking adverse employment
actions can often be more suitably described as sensible than devious.
Absent evidence providing an independent reason to suspect the act, the
documentation of the reasons for rejecting an applicant is insufficient,
in and of itself, to give rise to a reasonable inference of
As such, this Court concludes that Plaintiff has not produced evidence
of direct discrimination sufficient to proceed under a mixed motives
theory. Watkins' claims will therefore be analyzed as a "pretext" suit
under the burden shifting framework outlined in McConnell-Douglas,
supra, and Burdine, supra.
B. Racial Harassment
To establish a prima facie case of racial harassment under the LAD,
Watkins "must demonstrate that the defendant's conduct (1) would not have
occurred but for [his] 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." Taylor v. Metzger, 706 A.2d 685, 688-89 (N.J. 1998)
(citations omitted). The "severe or pervasive" test also "conforms to the
standard for establishing workplace racial or gender harassment under
federal Title VII law."*fn18 Id. at 689 (citing Meritor Sav. Bank v.
Vinson, 477 U.S. 57, 67 (1986)). Under the severe or pervasive standard,
"one incident of harassing conduct can create a hostile work
environment." Id. (citing Lehmann v. Toys `R' Us, Inc., 626 A.2d 445, 455
(N.J. 1993)). Nonetheless, "while it is `certainly possible' that a
single incident, if severe enough, can establish a prima facie case of a
hostile work environment, `it will be a rare and extreme case in which a
single incident will be so severe that it would, from the perspective of
a reasonable person situated as the claimant, make the working
environment hostile.'" Id. (citing Lehmann, 626 A.2d at 455).*fn19
In support of his racial harassment claim, Watkins argues that the
following facts constitute evidence of Defendants' severe or pervasive
conduct: (1) the turning around and ultimate removal of Plaintiff's Ebony
Fashion Fair calendar by co-worker Subsinsky; (2) the placement of a
plastic hatchet and scalpel in Watkins' mailbox, and three-dollar bills
marked with the words "weird bird" and "faggot go home" on his desk; (3)
the withholding of information by Watkins' team workers; (4) the failure
to include Watkins in company meetings; and (5) the contravening of
Watkins' authority by allowing his subordinates to make decisions that
were the responsibility of Watkins. (Pl.'s Br. at 6-9.)
Under the first element, Watkins must show that the above conduct would
have occurred but for his race. See Lehmann v. Toys `R' Us, Inc.,
132 N.J. 587, 605 (N.J. 1993). Obviously, where conduct is clearly racial
or racist in nature, the causal element will be satisfied. Id. In the
instant case, only Plaintiffs first two allegations are arguably racial
in nature. Nonetheless, Watkins may demonstrate that the remaining
actions by his colleagues would not have occurred but for his race by
showing that such facially neutral conduct was accompanied by conduct
that was obviously racial or, in the alternative, that only Blacks
suffered the facially neutral conduct. Id. Watkins does not specify
which, if any, of these alternatives he relies upon. However, construing
the evidence in a light most favorable to Plaintiff, this Court finds
that the Ebony Fashion Fair calendar incident — the only obviously
racial incident alleged by Plaintiff — combined with allegations of
Defendants' facially neutral conduct, satisfies the causal element of
Plaintiff's prima facie racial harassment case.
Nonetheless, Watkins has not demonstrated, by a preponderance of the
evidence, that such conduct was so severe or pervasive as to be
actionable under Title VII or the LAD. In evaluating whether an
environment is sufficiently hostile or abusive, the Supreme Court has
directed courts to "look at all the circumstances, including 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."
Faragher, 524 U.S. 775, 787-88 (internal citations omitted). Moreover,
the Court has emphasized that
simple teasing, offhand comments and isolated
incidents (unless extremely serious) will not amount
to discriminatory changes in the terms and conditions
of employment. These standards for judging hostility
are sufficiently demanding to ensure that Title VII
does not become a general civility code. Properly
applied, they will filter out complaints attacking the
ordinary tribulations of the workplace, such as the
sporadic use of abusive language, [race]-related
jokes, and occasional teasing. We have made it clear
that conduct must be extreme to amount to a change in
the terms and conditions of employment . . . Id. at
788 (internal citations omitted).
In light of the above standards, it is clear that Watkins has not
produced evidence of severe or pervasive conduct.
First, most of the allegedly hostile actions taken by Defendants are
not overtly racial in nature. Moreover, even though a Title VII hostile
environment claim may be founded on indirect evidence of subtle forms of
discrimination, Watkins has produced no evidence that the facially
neutral conduct of his supervisors and co-workers masked a discriminatory
intent. See Cardenas v. Massey, 269 F.3d 251, 261-62 (3d Cir. 2001)
("[T]he advent of more sophisticated and subtle forms of discrimination
requires that we analyze the aggregate effect of all evidence and
reasonable inferences therefrom, including those concerning incidents of
facially neutral mistreatment, in evaluating a hostile work environment
As noted earlier, Watkins has produced no evidence of racial animus on
the part of Mancini. (Tr. at 29.) However, Watkins argues that two black
co-workers, James Frederick ("Frederick") and Larry White ("White"),
witnessed the racial animus towards Watkins and racial minorities in
general.*fn20 But even here, Watkins'
evidence is weak. For instance,
Watkins highlights Frederick's deposition testimony that one of Watkins'
co-workers, Carvalho, used Watkins' race against him. In context,
however, Frederick's testimony is not persuasive: "[Carvalho] used to
like to use the phrase "boys" "you people." He would use those type
phrases, but I've heard him use them with other people in the trailer
also, because most of the process group was in the trailer, so to single
him out and say, Yeah because I'm African American he's using these
phrases, that may be the way I feel, but I can't prove it."*fn21 (Pl.'s
Ex. F at 48.)
Similarly, White noted that he had complained to management about a
"racially negative" joke made by co-worker Mooney and admitted that such
jokes were not a "big part" of Nabisco culture, and that he never heard
Mancini or any other supervisor utter such jokes. (Pl.'s Ex. E. at
54-59; 93.) White further admitted that once he reported Mooney's comment
to Mancini, Mancini spoke with Mooney, and the inappropriate behavior was
never repeated. (Id. at 55-59.)
Watkins' own testimony is also unpersuasive. For example, Watkins
testified that Mancini would often make "off-color comments" targeting
"Polacks" or "Asian Americans," but not Blacks: "I don't know that I
heard Mr. Mancini, in my presence at least, say any specific racist
comments about African-Americans." (Id., Ex. A. at 128-132.) Watkins
could not provide any specific examples of the "off color" jokes or
offensive language that Mancini allegedly used.*fn22 (Id. at 129.)
Watkins's reliance on a few racial jokes — the most clearly
documented of which have occurred outside of Watkins' presence — to
imply that Nabisco's facially neutral conduct masked discriminatory
intent is misplaced. Compare Cardenas, 269 F.3d at 261-63 (summary
judgment on plaintiffs hostile work environment claim precluded where
plaintiff produced evidence of overtly racial comments as well as several
forms of facially neutral mistreatment).
In fact, Watkins' evidence falls short of demonstrating that he
suffered more than the "ordinary tribulations of the workplace" not
protected by Title VII. Considering the evidence in its totality, this
Court concludes that Plaintiff has failed to show that Defendants'
conduct was so severe or pervasive to make an African-American believe
that his work conditions were somehow altered or that his environment was
hostile. This Court therefore grants Nabisco's motion for summary
judgment as to Watkins' racial harassment claim.
C. Racial discrimination (discriminatory discharge)
To establish a prima facie case of discriminatory discharge under Title
VII, Watkins must show: (1) that he is a member of a protected class; (2)
that he was qualified for the position; (3) that he was discharged; and
(4) that other employees not in a protected class were treated more
favorably. Josey v. John R. Hollingsworth Corp., 996 F.2d 632 (3d Cir.
1993); Turner v. Schering-Plough Corp., 901 F.2d 335, 342 (3d Cir. 1990)
LAD case). Defendants charge that Watkins has not made out a
prima facie case of discriminatory discharge. Specifically, defendants
claim that Watkins has failed to establish the second and fourth elements
of the prima facie case. (Defs.' Br. at 18.) Alternatively, Defendants
maintain that even if Watkins has made out a prima facie case of
discriminatory discharge, they have produced undisputed evidence that
Watkins was discharged for legitimate, nondiscriminatory reasons. (Id. at
First, Defendants argue that Plaintiff cannot establish that he was
qualified for the position since "he clearly was not performing his
position at a level that satisfied the employer's legitimate
expectations." (Defs.' Br. at 18.) Specifically, Defendants argue that
Watkins' "work product contained numerous deficiencies and despite the
undisputed evidence that defendants notified plaintiff of these
deficiencies and advised him of the consequences of his poor
performance, plaintiffs performance did not improve." (Id.) This
argument, however, is more appropriately addressed under Defendant's
rebuttal to Plaintiffs prima facie case.
Defendants also claim that Watkins cannot satisfy the fourth element of
the prima facie case. Defendants maintain that their eventual transfer of
another African American employee, Denard Grover, into Watkins' position
precludes Plaintiff from proving element four.*fn23 (Defs.'Br. at 18.)
The Third Circuit, however, has cautioned that "a plaintiffs inability to
prove that [he] was replaced by someone outside of [his] class is not
necessarily consistent with [his] demonstrating that the employer treated
[him] less favorably than others because of [his] race, color, religion,
sex, or national origin." Pivirotto, 191 F.3d at 353 (internal citations
omitted). Thus, although assigning Grover to assume Watkins' duties does
hold some evidentiary weight, it does not completely absolve Defendants
of liability. See id. at 354.
Regardless, under the McDonnell Dourglas-Burdine "pretext" analysis,
Watkins must still show by a preponderance of the evidence that other
employees who were not African-American were treated more favorably. In
support of the fourth element, Watkins alleges: (1) that he was subject
to requirements and discipline no similarly-situated Caucasian employee
suffered; and (2) that Mancini engaged in publicly abusive behavior
towards Watkins that was not directed at Caucasian engineers. (Pl.'s Br.
For example, Watkins argues that his load was heavier than Caucasian
engineers because the support staff available to Caucasian engineers was
taken away from Watkins. (Pl.'s Rule 56.1 Statement ¶ 47.) Watkins
alleges that although he was initially assigned two supporting
engineers, they were subsequently removed without replacements. (Id.) As
evidence of this
claim, Watkins points to his September 29, 1997
memorandum, in which he told Mancini that his problems with "Project
Management" were in part based on Nabisco's failure to provide him one or
two people to assist with specification writing and project follow-up."
(Cohen Aff. Ex. X at 3.) Watkins provides no evidence that he raised this
concern with Nabisco prior to September 1997. Additionally, Watkins
provides no testimony attesting to the support staff of similarly-situated
Watkins allegations against Mancini are even less supported by the
record.*fn24 Plaintiff, for instance, maintains that "Mancini yelled at
and belittled Watkins before his colleagues, and made off-color
comments." (Pl's Br. at 9-10.) In addition, Watkins claimed that
"[d]uring Watkins' meetings with Mancini, at his cubicle and in the
presence of other employees, Mancini would become loud, hostile and
insulting, telling Watkins that he was stupid and was doing things
incorrectly." (Id. at 10.) Watkins asserts that Mancini did not engage in
similar treatment of Caucasian engineers. (Id.) Despite the allegation
that some of Mancini's abusive behavior occurred in front of other
Nabisco employees, Watkins' produces no evidence from other Nabisco
employees to corroborate these allegations.
Even assuming arguendo that the above evidence satisfies element four
of the prima facie case of discriminatory discharge, this Court finds
that Watkins has not produced evidence tending to establish that
Defendants' legitimate, non-discriminatory reasons for terminating
Watkins were pretexts for discrimination. Defendants counter that they
properly terminated Watkins based on his failure to meet Nabisco's job
expectations. (Defs.' Br. at 19.) Specifically, Defendants maintain that
Watkins' poor performance constituted a legitimate basis upon which they
could execute their "traditional management prerogative" to terminate
him. (Id. at 19-20.)
The employer's burden to articulate a legitimate reason for its
unfavorable employment decision is "relatively light." Fuentes v.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994). This Court therefore finds that
Nabisco has met its burden of proffering a legitimate, non-discriminatory
reason for terminating Watkins. Accordingly, in order to survive summary
judgment, Watkins must point "to some evidence from which a factfinder
could reasonably conclude that the defendants proffered reasons were
fabricated." Fuentes, 32 F.3d at 764. Specifically, Watkins' "evidence
rebutting the employer's proffered legitimate reasons must allow a
factfinder reasonably to infer that each of the employer's proffered
non-discriminatory reasons was either a post hoc fabrication or otherwise
did not actually motivate the employment action (that is, the proffered
reason is pretext)." Id. (internal citations omitted.)
To discredit the employer's proffered reason . . . the
plaintiff cannot simply show that the employer's
decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is
wise, shrewd, prudent or competent. Rather, the
non-moving plaintiff must demonstrate such
weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's
proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them
unworthy of credence and hence infer that the employer
did not act for the asserted non-discriminatory
reasons. Id. at 765. (internal citations omitted.)
Watkins' rebuttal evidence fall grossly short of this standard.
In response to Defendants' claim that Watkins' was unqualified for the
position of Senior Process Control Engineer, Watkins first alleges that
prior to Mancini's return to work from sick leave, his performance was
found acceptable by Boyle. (Pl's Br. at 20.) Boyle's deposition testimony
on this issue is as follows:
Q. By the time that Mr. Mancini came back, what were
your — at that time, were you generally
satisfied with Mr. Watkins' performance?
A. I don't know that I felt I was able to make a
judgment about that, that I know I was glad to have
Mr. Mancini back for obvious reasons that his absence
was felt and that he would then be able to give, among
other things, give Mr. Watkins closer supervision.
My feeling, as I recall, was that I really don't
know rather than having a negative feeling.
Q: Okay. Did you, at some point, lose faith in Mr.
Watkins' ability to perform the job?
A: I never decided that he did not have the
ability. As I sit here today, I don't know that I feel
that he doesn't have the ability to do the job. I
don't know whether he does or not. He just didn't
deliver. (Boyle Dep. at 48-53.)*fn25
As illustrated, Boyle's testimony is much more equivocal than Watkins
suggests. Moreover, Boyle's opinion as to whether Watkins was able to
perform the duties of a Senior Process Control Engineer is irrelevant to
whether he did perform those duties.*fn26 Therefore, Boyle's testimony
that Watkins may have had the ability to perform his duties does not
render Defendants' theory inconsistent or implausible.*fn27
Of course, Watkins also suggests that his ability to perform his job
adequately was hampered by fellow engineers. (Pl.'s Br. at 20.) Watkins
states that he overheard a conversation in which Lomauro, a co-worker,
stated an intention to "damage" him and force him out of his position.
(Pl.'s Rule 56.1 Statement ¶ 37.) Watkins further alleges that his
co-workers' primary method of ensuring Watkins' failure was their delay,
or failure to provide information critical to completing his job. (Id. at
38.) For example, Watkins claimed that "[t]he average response time to my
emails is approximately 8 business days. [Mooney] and [Lomauro] average
about three weeks to open the emails and most of the time does [sic] not
respond to them at all."*fn28 (Cohen Aff., Ex. N at 2.) Watkins
points to testimony of Frederick, who recalled Watkins complaining about
Mooney's failure to provide Watkins with information in a timely manner.
(Frederick Dep. at 38.) In addition, Watkins points to the testimony of
Lomauro, who admitted that he would sometimes delay by weeks his response
to Watkins' emails. (Lomauro Dep. at 140-44.)
Finally, Watkins claims that Lomauro and Mooney held several meetings
— deliberately excluding Watkins — in which they made
important decisions for which Watkins was responsible, thereby bypassing
Watkins in the decisionmaking process. (Pl.'s Rule 56.1 Statement ¶
44.) Watkins points to Lomauro's testimony that he gave information to a
programmer who reported to Watkins without Watkins' knowledge. (Lomauro
Dep. at 88.)
Drawing all reasonable inferences in Watkins' favor, however, this
Court nonetheless determines that Watkins has not offered evidence
sufficient to rebut Defendants' claim that Watkins was terminated due to
his poor work performance. To be sure, this Court is not presented with
facts similar to those evaluated by the Third Circuit in Sorba v.
Pennsylvania Drilling Co., Inc., 821 F.2d 200 (3d Cir. 1987). In Sorba,
the Third Circuit reversed a grant of summary judgment in favor of the
employer on plaintiffs age discrimination claim. The employer argued that
the decision to discharge plaintiff was based on his poor performance.
821 F.2d at 203. Plaintiff, relying on the deposition testimony of his
supervisors, argued that the criticism of his performance was unfounded.
Id. at 204. The Court concluded that plaintiff had produced evidence
which cast doubt upon the defendant's dissatisfaction with plaintiffs
[Plaintiff] does not dispute the fact that there were
poor results on his last three jobs. He has proffered
evidence, however, that his supervisors realized that
the poor results were not his fault. Upon examination
at their depositions, the testimony of the movant's
witnesses was inconsistent regarding whether they
believed [plaintiffs] performance caused the
unsatisfactory job results. Id. at 205.
Conversely, Watkins has not proffered similar evidence to discredit
Nabisco's reasons for his termination. Nabisco admits that its decision
to terminate Watkins was based primarily on the reports of Mancini, his
direct supervisor. (Cohen Aff., Ex. BB.) As of September 9, 1997, Mancini
had outlined the following problem areas for Watkins: 1) failure to
communicate with Mancini and other team members regarding the Atlanta
line 9 project; 2) failure to maintain a current process; control
budget, work plan or schedule for the line 9 project; 3) failure to
follow the Process Control Systems group software change request
procedure; 4) failure to follow specific instructions regarding proper
technical documentation of planned work; 5) failure to meet commitments
and failure to provide reasonable expectations for doing so; and 6)
failure to abide by the established business practices of the Process
Control group and the Engineering department. (Cohen Aff., Ex. W at 1.)
In response to these alleged deficiencies, Watkins has only pointed to
evidence suggesting that two of his co-workers delayed in responding to
Watkins' requests for information. Watkins has not specified which
requests Lomauro and Mooney delayed in responding to, or how such delays
impacted his ability to correct the problem areas articulated by
to Watkins' allegations that Nabisco "set him up
to fail", the record demonstrates that Nabisco attempted to address
Watkins' concerns regarding his co-workers' lack of cooperation.*fn30
Similarly, Watkins has not pointed to any evidence of exclusionary
meetings, nor has he described what decisions were made in contravention
of his authority. Although Watkins is not required to discredit each of
Nabisco's proffered reasons in a vacuum, Watkins' limited evidence fails
to cast doubt on even a substantial number of the legitimate business
reasons provided by Nabisco. See Fuentes, 32 F.3d at 764, n. 7. In fact,
by September of 1997, when Watkins was placed on the 90-day corrective
action plan, Watkins admitted that he no longer worked with the allegedly
offending co-workers and thus, no longer felt as if he was being
mistreated because of his race. (Watkins Dep. at 368.)
Thus, excepting his unsupported allegations, Watkins has not pointed to
any evidence establishing a reasonable inference that Nabisco's proffered
explanation is unworthy of credence. Accordingly, this Court grants
Nabisco's motion for summary judgment as to Watkins' racial
discrimination claim under Title VII and the LAD.
Under Title VII and the NJLAD, to advance a prima facie case of
retaliation, Watkins must show: (1) that he engaged in a protected
activity known to the employer; (2) that he was thereafter subjected to
an adverse employment decision by the employer; and (3) that a causal
link exists between the employee's protected activity and the employer's
adverse action. Delli Santi v. CNA Insurance Companies, 88 F.3d 192, 198
(3d Cir. 1996); Kachmar v. Sungard Data Systems, Inc., 109 F.3d 173, 177
(3d Cir. 1997). Defendants challenge Watkins' ability to establish
element three of the prima facie case.*fn31 Specifically, Defendants
maintain that Watkins has failed to offer any evidence that his December
1996 memorandum had a causal connection to Nabisco's decision to
terminate him thirteen months later, in January 1998. (Defs.' Br. at
The Third Circuit has established two main factors in finding the
necessary causal link between an employee's protected activity and the
employer's adverse action: timing and evidence of ongoing antagonism.
Kachmar, 109 F.3d at 177; Woodson v. Scott Paper Co., 109 F.3d 913,
920-21 (3d Cir. 1997). Although passage of time, alone, may not be
legally conclusive proof against retaliation, a plaintiff may assert a
temporal proximity between the protected activity and the termination in
order to establish a causal link. Woodson, 109 F.3d at 921. A plaintiff
may also establish the requisite causal link by demonstrating that the
employer engaged in a pattern of ongoing antagonism in the period after
plaintiff lodged his complaint. Id. Thus, the court must avoid taking "too
narrow a view of the temporal proximity
needed to satisfy the causal link
element . . ." Kachmar, 109 F.3d at 177.
It is important to emphasize that it is causation, not
temporal proximity itself, that is an element of
plaintiffs prima facie case, and temporal proximity
merely provides an evidentiary basis from which an
inference can be drawn. The element of causation,
which necessarily involves an inquiry into the motives
of an employer, is highly context-specific. When there
may be valid reasons why the adverse employment action
was not taken immediately, the absence of immediacy
between the cause and effect does not disprove
causation. Id. at 178.
In fact, a "broad array" of circumstantial evidence may be used to
illustrate the causal link, including inconsistent reasons for
termination, evidence casting doubt on reasons proffered for
termination, and a change in demeanor after a complaint of
discrimination. Abramson v. William Patterson College of New Jersey,
260 F.3d 265, 289 (3d Cir. 2001). "These are not the exclusive ways to
show causation, as the proffered evidence, looked at as a whole, may
suffice to raise the inference." Kachmar, 109 F.3d at 177.
Watkins contends that he first raised concerns about discriminatory
treatment to Nabisco employees in late 1995. (Compl. ¶ 22.) The
first document demonstrating Nabisco's awareness of Watkins' complaints
is Mancini's October 1996 memorandum to Boyle. (Cohen Aff., Ex. M.) This
is followed by Watkins' own December 6, 1996 memorandum. (Id., Ex N.)
Watkins' March 1997 performance review — completed approximately
six weeks later, on February 19, 1997 — reduced Watkins' overall
rating from "effective" to "developmental." (Id., Ex. U.) Nonetheless,
Watkins was not terminated until January 1998. (Id., Ex CC.) Based on the
above timeline, this Court determines that the protected activity Watkins
engaged in during 1996 is temporally remote from his termination over a
year later. Accordingly, Watkins "can prevail only if a reasonable jury
could find that [Nabisco] engaged in a `pattern of antagonism' in the
period between his . . . complaints [to Mancini] and his firing."
Woodson, 109 F.3d at 921.
Watkins contends that he has demonstrated a `pattern of antagonism'
which included Mancini setting Watkins up for failure by making him
perform punitive and "make work" paperwork demands. (Pl.'s Br. at 26.) For
instance, Watkins points to testimony suggesting that, unlike other
engineers, Watkins was required to create functional specifications for
software projects that already had been completed. (Boyle Dep. at
130-31.) Watkins also claims that Mancini would make Watkins work all
night to finish a report, and then inform Watkins that he no longer
needed the report.*fn32 (Pl.'s Br. at 26.)
This evidence — even taken together and viewed in the light most
favorable to Watkins — is insufficient to support a finding of a
pattern of antagonistic behavior that would allow Watkins to prevail on
the causal link prong. Watkins' contentions that he worked long and
performed "make work"
tasks are extremely general: it is unclear, for
instance, whether these situations occurred regularly throughout Watkins'
three years at Nabisco, or whether they began only after Watkins voiced
his harassment complaints.*fn33 Indeed, contrary to Watkins' allegations
of retaliation, the record reveals that Nabisco actually attempted to
assist Watkins in improving his performance.*fn34
This Court has already noted, in its evaluation of Watkins'
discrimination claim, the lack of evidence suggesting that Nabisco's
proffered legitimate business reasons for terminating Watkins were
pretextual. Likewise, Watkins has also failed to adduce evidence
demonstrating that discrimination was more likely than not a motivating
cause for his termination. Accordingly, this Court concludes that Watkins
has failed to demonstrate a prima facie case of retaliation under Title
VII or the LAD.*fn35 Nabisco's motion for summary judgment as to those
claims is granted.
E. 42 U.S.C. § 1981
Pursuant to Section 1981:
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of
every kind, and to no other.
For the purposes of this section, the term "make and
enforce contracts" includes the making, performance,
modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and
conditions of the contractual relationship.
42 U.S.C. § 1981.
Like Watkins' Title VII and LAD claims, his Section 1981 claim must be
analyzed under the McDonnell-Douglass burden shifting framework.
Patterson v. McLean Credit Union,