United States District Court, D. New Jersey
June 1, 2005.
SERGE DASQUE, Plaintiff,
NORDSTROM, INC., Defendant.
The opinion of the court was delivered by: ANNE THOMPSON, Senior District Judge
MEMORANDUM & ORDER
This matter is before the Court on Defendant's Motion for
Summary Judgment [33-1]; Defendant's Motion to Dismiss and Strike
the Amended Complaint [41-1]; Plaintiff's Motion Opposing
Defendant's Motion to Dismiss and Strike the Amended Complaint
[43-1]; and Defendant's Motion to Strike Plaintiff's Opposition
to Defendant's Partial Reply to Plaintiff's Opposition to Summary
Judgment [44-1]. The Court has decided these motions after
considering the parties' written submissions and without oral
argument pursuant to Fed.R.Civ.P. 78. For the following
reasons, Defendant's motions are granted and Plaintiff's motion
Plaintiff, a black Haitian male, brings this pro se action
under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., for employment discrimination. Plaintiff's
December 13, 2002 Complaint alleges that his former employer,
Nordstrom, Inc. ("Nordstrom"), discriminated against him based on
his race, sex, and national origin by failing to promote him, by
favoring other employees with regard to scheduling and other
matters, by limiting his telephone communications with his supervisor, and by ultimately terminating
him. On September 15, 2004, Plaintiff filed an Amended Complaint
without leave of Court which added claims of disability
discrimination, retaliation, hostile work environment, defamation
of character, obstruction of justice, violation of human rights,
I. Motion to Strike or Dismiss the Amended Complaint
Defendant first moves to dismiss or strike Plaintiff's Amended
Complaint, arguing that Plaintiff improperly amended his claims
without leave of the Court in violation of Fed.R.Civ.P.
15.*fn1 Defendant answered the Complaint on March 15, 2004,
and Plaintiff was required to obtain leave of the court or
Defendant's written consent in order to amend. Plaintiff did not
seek leave of the Court to amend and did not obtain consent of
his adversary, who advised Plaintiff that it needed a copy of his
proposed amendments before it decided whether to grant consent.
Further, Plaintiff did not serve the Amended Complaint on
Defendant, as required by Fed.R.Civ.P. 5. For these reasons,
the Amended Complaint will be struck.
Even if the Court were to consider Plaintiff's opposition to
Defendant's motion to dismiss or strike as a motion to amend, it
appears as if such a motion would be denied as futile. See
Foman v. Davis, 371 U.S. 178, 182 (1962). In other words, it
appears that the amendments would not be able to withstand a motion to dismiss. Alvin v.
Suzuki, 227 F.3d 107, 121 (3d Cir. 2000).
Plaintiff's new claims of disability discrimination,
retaliation, and hostile work environment cannot stand, as
Plaintiff has not exhausted his administrative remedies by filing
a charge with the Equal Employment Opportunity Commission or
state or local agency, see 42 U.S.C. § 2000e-5;
42 U.S.C. § 12117; see also Churchill v. Star Enterprises, 183 F.3d 184,
190 (3d Cir. 1999); Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir.
1996), and has not demonstrated an equitable basis for modifying
this requirement, see Bowen v. City of New York,
476 U.S. 467, 482 (1986); Waiters v. Parsons, 729 F.2d 233, 236 (3d Cir.
1984) (per curiam). Even accepting as true Plaintiff's allegation
that an EEOC investigator misled him about the requirements and
procedures involved with filing an EEOC complaint, this "does not
rise to the level of being prevented in an `extraordinary way' by
the EEOC from asserting his rights." See Robinson v. Dalton,
107 F.3d 1018, 1023 (3d Cir. 1997). Thus, equitable tolling is
not justified in this case. Although the facts supporting the
three new claims occurred before Plaintiff filed his initial
Complaint with the EEOC, Plaintiff did not raise these claims
until after the EEOC made its determination, did not attempt to
amend his complaint to include these claims, and did not make any
additional inquiries or attempt to investigate the appropriate
procedures for raising these claims after he was allegedly misled
by one EEOC employee.*fn2
Further, although "[a] victim of discrimination is not required
to exhaust administrative remedies with respect to a claim concerning an incident which
falls within the scope of a prior EEOC complaint or the
investigation which arose out of it," Waiters, 729 F.2d at 235,
Plaintiff's original factual allegations cannot fairly be said to
encompass a claim for retaliation, hostile environment,*fn3
or disability discrimination, and an investigation of those facts
would not have yielded evidence of any such claims. Therefore,
even if Plaintiff's Amended Complaint was not struck, the Court
would deny his attempt to add claims of disability
discrimination, retaliaton, and hostile work environment as
Similarly, the Court would deny as futile Plaintiff's attempt
to add claims of defamation of character, conspiracy, obstruction
of justice, violation of human rights, and unfair treatment.
There are no private rights of action that would allow Plaintiff
to proceed with a civil claim based on obstruction of justice,
violation of human rights, and unfair treatment outside of the
claims he has pled elsewhere in his Complaint. Cf.
29 U.S.C. § 160; 18 U.S.C. §§ 241, 242, 1503, and 2516. As to conspiracy,
employees of a corporation acting within the scope of their employment cannot conspire with a corporation or with each other,
as they are all considered one entity. Sunkett v. Misci,
183 F. Supp. 2d 691, 722 (D.N.J. 2002). Further, both Plaintiff's
conspiracy claim and defamation claim are barred by the statute
of limitations, should not be equitably tolled, and do not
constitute a "continuing violation" that is within the
limitations period. See N.J.S.A. § 2a:14-3.1; Montells v.
Haynes, 133 N.J. 282, 286 (1993).
II. Motion for Summary Judgment*fn4
Defendant also moves for summary judgment on Plaintiff's
discrimination claims in his original Complaint: failure to
promote, favoring other employees, limiting telephone access to
supervisor Joseph Dubina, and termination. Plaintiff did not
oppose Defendant's motion with regard to the failure to promote
claim, and the Court will grant Defendant's motion to dismiss the
failure to promote claim for this reason.*fn5 The Court
turns to the remaining three allegations.
A party seeking summary judgment must "show that there is no
genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56;
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Orson,
Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996).
Summary judgment is to be granted against the non-moving party
when that party has failed to make a sufficient showing, after
discovery, establishing an element of his claim that is essential
to his case, and on which the non-moving party will bear the
burden of proof at trial. Celotex, 477 U.S. at 322. In reviewing
motions for summary judgment, the evidence is viewed in a light
most favorable to the non-moving party. InterVest, Inc. v.
Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003).
A motion for summary judgment is designed to go beyond the
pleadings. Celotex, 477 U.S. at 322. Consequently, to defeat a
motion for summary judgment, a party must do more than restate
the initial allegations of the Complaint, or provide unsupported
conclusions of fact. Id. A non-moving party must point to
concrete evidence in the record which supports each element of
the claim. Id. Failure of the non-moving party to provide such
evidence entitles the moving party to judgment as a matter of
law. Fed.R.Civ.P. 56. Finally, because Plaintiff is a pro
se litigant, his papers are liberally construed to ensure a
fair opportunity to be heard. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972).
A plaintiff can demonstrate employment discrimination under
either the direct evidence test, Price Waterhouse v. Hopkins,
490 U.S. 228, 261 (1989) (O'Connor, J., concurring); Connors v.
Chrysler Financial Corp., 160 F.3d 971, 976 (3d Cir. 1998), or
the indirect evidence test, McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). Under the direct evidence method, the
plaintiff faces a high hurdle, Connors, 160 F.3d at 976, and
must "produce evidence sufficient to show that an illegitimate
criterion was a substantial factor in the particular employment
decision such that a reasonable factfinder could draw an
inference that the decision was made `because of' the plaintiff's
protected status," Price Waterhouse, 490 U.S. at 278. If the
plaintiff overcomes this hurdle, the employer must then
"demonstrate by a preponderance of the evidence that it would
have reached the same decision . . . absent consideration" of the
protected status. Id. at 261. Neither "stray remarks in the
workplace . . . statements by nondecisionmakers, [n]or statements by decisionmakers unrelated to the decisional
process itself, suffice to satisfy the plaintiff's burden in this
regard." Id. at 277.
In the present case Dasque is unable to meet the high burden of
the direct evidence analysis. Dasque proffers statements
allegedly made by his supervisor Joseph Dubina to show direct
evidence: Dubina's use of the term "sixteen and a helfs" to mimic
Plaintiff's accent and Dubina's insistence that Plaintiff say
"okay boss I will do it" in response to Dubina's requests.
Plaintiff also relays two instances where personnel told him they
could not understand his accent.
At the outset, it is not clear that the Court should consider
these statements in evaluating summary judgment, as they
contradict prior sworn testimony by Plaintiff that he never
directly witnessed any comments made by supervisors or human
resources personnel that indicated they were biased against
Blacks, men, or Haitians. (Dasque Dep. at 96-98). Under the "sham
affidavit" doctrine, "a party may not create a material issue of
fact to defeat summary judgment by filing an affidavit disputing
his or her own sworn testimony without demonstrating a plausible
explanation for the conflict." Hackman v. Valley Fair,
932 F.2d 239, 241 (3d Cir. 1991). Plaintiff's explanation for the
conflict, that the deposition transcript was falsified, is
implausible and does not specifically dispute the portions of the
transcript which are relevant to this summary judgment motion.
This explanation is insufficient to contradict his sworn
testimony. For this reason, the Court will disregard the
inconsistent allegations. However, even if the Court were to
consider these statements, it appears as if they are not
sufficient to show that an illegitimate criterion was a
substantial factor in the adverse employment actions taken
against Plaintiff, but instead constitute stray remarks that were
unrelated to and temporally remote from the decisional process.
See Price Waterhouse, 490 U.S. at 277 If a plaintiff is instead relying on indirect evidence, he must
first prove a prima facie case of discrimination. See
McDonnell Douglas, 411 U.S. at 802. Once this initial showing
has been made, the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for its employment decision.
See id. If the defendant provides a non-discriminatory reason
for its decision, the burden shifts back to the plaintiff who
then must discredit the defendant's proffered reason for the
termination. See id.
To establish a prima facie case, a plaintiff must prove that:
(1) he belonged to a protected class, (2) he was qualified to
continue working in his position, (3) he was discharged from the
position or suffered adverse employment consequences; and (4)
similarly situated non-members of the protected class were
treated more favorably. See id.; see also St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 506 (1993); Abramson v. William
Paterson Coll. of N.J., 260 F.3d 265, 281-82 (3d Cir. 2001);
Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 522
(3d Cir. 1992). The defendant is entitled to summary judgment if
the plaintiff is unable to establish a genuine issue of material
fact concerning at least one element of the prima facie case.
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 501 (3d Cir. 1997).
The plaintiff's task in establishing a prima facie case, however,
is not intended to be onerous. See, e.g., Sempier v. Johnson &
Higgins, 45 F.3d 724, 728 (3d Cir. 1995).
In the present case, Plaintiff argues the Defendant
discriminated against him by (1) not allowing him to be in a
departmental photograph, (2) by taking longer to give him
business cards than another employee, (3) by refusing to give him
New Year's Day off while allowing another employee to take the
day off, (4) by prohibiting him from calling supervisor Joseph
Dubina at home unless it was an emergency, and (5) by ultimately
terminating him. As to the first two of these allegations, Plaintiff has not established that a delay in
obtaining business cards or not taking part in an office
photograph are adverse employment actions. See Robinson v.
City of Pittsburgh, 120 F.3d 1286, 1299-1300 (3d Cir. 1997). As
to the third allegation, Defendant has provided undisputed
evidence that it tried to accommodate both Dasque and the other
employee with regard to working on New Year's day, but still
expected both employees to work at least some of their hours on
Defendant argues that Plaintiff's fourth and fifth claims fail
because (1) he cannot establish his prima facie case, namely, he
cannot show that he continued to meet the job requirements or
that similarly situated non-members of the protected class were
treated more favorably; and (2) even if he could establish a
prima facie case, Plaintiff cannot establish that Defendant's
explanation for the adverse employment actions was pretextual.
The Court shall take each of those bases for summary judgment in
Defendant first argues that Plaintiff cannot establish a prima
facie case because there were no other employees who failed to
comply with Defendant's policies and procedures to the extent
that Plaintiff did. The decision to prohibit Plaintiff from
calling his supervisor at home except in cases of emergency was
made because Plaintiff called Defendant at home one to two times
a week. Plaintiff does not dispute Defendant's contention that no
other employee called Mr. Dubina as frequently to discuss routine
matters. Because Plaintiff cannot show that Defendant treated
similarly situated non-members of the protected class more
favorably with regard to telephoning Dubina, Plaintiff cannot
establish the first prong of his prima facie case on this
Plaintiff's ultimate termination was based on a failure to
comply with Defendant's antiharassment policy, which states that employees must treat one another with
respect and refrain from hostile, disrespectful, and intimidating
conduct. Despite these explicit qualification requirements, only
objective qualifications such as experience and education are
considered at the prima facie stage. Sempier, 45 F.3d at 729.
The question of whether an employee possesses a subjective
quality, such as compliance with the anti-harassment policy, is
better left to a consideration of whether the employer's
nondiscriminatory reason for discharge is a pretext. See
Weldon v. Kraft, Inc., 896 F.2d 793, 798-99 (3d Cir. 1990);
see also Fowle v. C & C Cola, 868 F.2d 59, 64-65 (3d Cir.
1989) (noting that subjective evaluations "are more susceptible
of abuse and more likely to mask pretext").
The fact that compliance with the anti-harassment policy is a
subjective judgment also affects the Court's analysis of whether
similarly situated non-members of the protected class were
treated more favorably. To be considered similarly situated, the
individual with whom the Plaintiff seeks to be compared must have
"engaged in the same conduct without such differentiating or
mitigating circumstances that would distinguish their conduct or
the employer's treatment of them for it." Anderson v. Haverford
College, 868 F. Supp. 741, 745 (E.D. Pa. 1994) (quoting Mitchell
v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)). Although
Plaintiff provides examples of incidents involving several other
co-workers to show that other violations of the anti-harassment
policy were overlooked, it is difficult for the Court to judge
whether these employees were similarly situated by weighing the
quantitative number and qualitative severity of such violations.
For this reason, and because the Third Circuit has held that it
is not necessary to prove the fourth prong in order to sustain a
prima facie case of discrimination under Title VII, Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 354 (3d Cir.
1999),*fn6 the Court will turn to a consideration of his
subjective qualifications in the context of the pretext analysis.
Because Defendant has produced a legitimate, nondiscriminatory
reason for its action,*fn7 repeated violations of the
anti-harassment policy, Plaintiff must satisfy the pretext stage.
At this final step of the McDonnell Douglas analysis, the
burden shifts back to the plaintiff to produce "sufficient
evidence from which a jury could conclude that the purported
reasons for [a] defendant's adverse employment actions were in
actuality a pretext for intentional . . . discrimination." Jones
v. Sch. Dist. of Phila., 198 F.3d 403, 412 (3d Cir. 1999). A
plaintiff arguing pretext may defeat a motion for summary
judgment by pointing:
to some evidence, direct or circumstantial, from
which a factfinder could reasonably either: (1)
disbelieve the employer's articulated legitimate
reasons; or (2) believe that [an] invidious
discriminatory reason was more likely than not a
motivating or determinative cause of the employer's
action. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)
(citations omitted); see also Sheridan v. E.I.
DuPont de Nemours & Co., 100 F.3d 1061, 1067 (3d
Cir. 1996) (en banc).
Under the first prong, an employee may defeat a motion for
summary judgment by discrediting the employer's proffered
reasons, either directly or circumstantially. Fuentes,
32 F.3d at 764. To discredit the employer's proffered reason:
[t]he 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. . . . [T]he nonmoving
plaintiff must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate
reasons for its actions that a reasonable factfinder
could rationally find them unworthy of credence.
Id. at 765 (citations omitted). In other words, the plaintiff
may survive summary judgment under the first prong by
demonstrating, through admissible evidence, "not merely that the
employer's proffered reason was wrong, but that it was so plainly
wrong that it cannot have been the employer's real reason."
Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101
, 1109 (3d
Cir. 1997). This required demonstration "places a difficult
burden on the plaintiff[.]" Fuentes, 32 F.3d at 765.
A plaintiff may also survive summary judgment under the second
prong by "adducing evidence, whether circumstantial or direct,
that discrimination was more likely than not a motivating or
determinative cause of the adverse employment action." Id. at
764. To satisfy that element, for example:
the plaintiff may show that the employer has
previously discriminated against [him], that the
employer has discriminated against other persons
within the plaintiff's protected class or within
another protected class, or that the employer has
treated more favorably similarly situated persons not
within the protected class. Simpson v. Kay Jewelers, Div. of Sterling, Inc.,
142 F.3d 639, 645 (3d Cir. 1998) (citing Fuentes,
32 F.3d at 765).
In this case, Plaintiff has failed to establish a pretext for
discrimination under either prong of the applicable standard.
Defendant's reasons for terminating Plaintiff reflect Plaintiff's
history of discourteous and unprofessional behavior. The evidence
clearly shows that Plaintiff was unable to meet the professional
standards required for his position at Nordstrom. Plaintiff had
numerous confrontations with other employees during the course of
his employment. This Court determines that Plaintiff has failed
to show that this justification for his termination "was so
plainly wrong that it cannot have been the employer's real
reason." See Keller, 130 F.3d at 1109.
Plaintiff has also failed to show that discrimination was more
likely than not a reason for termination. Plaintiff has not
shown, for example, that Defendant has discriminated against
other members of his protected class. Fuentes, 32 F.3d at 765.
Defendant moreover asserts that nonminority employees have
previously been disciplined for violations of Nordstrom's
antiharassment policy. Therefore, Plaintiff has failed to
establish that Defendant's explanation for termination was
pretextual and that discrimination was more likely than not the
reason for his termination, and Defendant is entitled to summary
judgment on Plaintiff's claims for sex, race, and national origin
For these reasons,
It is on this 1st day of June, 2005,
ORDERED that Defendant's Motion for Summary Judgment [33-1] is
GRANTED; and it is further ORDERED that Defendant's Motion to Dismiss and Strike the
Amended Complaint [41-1] is GRANTED; and it is further
ORDERED that Plaintiff's Motion Opposing Defendant's Motion to
Dismiss and Strike the Amended Complaint [43-1] is DENIED; and it
ORDERED that Defendant's Motion to Strike Plaintiff's
Opposition to Defendant's Partial Reply to Plaintiff's Opposition
to Summary Judgment [44-1] is GRANTED, and it is further.
ORDERED that this case is CLOSED.