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CAMPBELL v. ABERCROMBIE & FITCH

June 9, 2005.

JEFFREY CAMPBELL, JR., Plaintiff,
v.
ABERCROMBIE & FITCH, CO., Defendant.



The opinion of the court was delivered by: JOSEPH RODRIGUEZ, Senior District Judge

OPINION

This matter has come before the Court on Defendant Abercrombie & Fitch, Co.'s ("A&F") Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56(c) to dismiss Jeffrey Campbell's ("Campbell") claim that A&F violated the Civil Rights Act of 1871, 42 U.S.C. § 1981 ("§ 1981") and New Jersey's Conscientious Employee Protection Act, N.J. Stat. Ann. §§ 34:19-1, et seq. ("CEPA") when it fired Campbell in retaliation for Campbell's whistle-blowing activities.*fn1 For the reasons expressed below, A&F's motion will be granted as to both claims.

I. FACTUAL BACKGROUND

  All of the events giving rise to the adverse employment action occurred during the two and half months (April 6, 2003-June 24, 2003) that Campbell, an African-American, was employed as a Security Supervisor at A&F's Cherry Hill, New Jersey store. (Compl. ¶ 5.) Except where noted, the facts are undisputed and set forth below in chronological order. After one month of employment, Campbell allegedly discovered that A&F "engaged in and had implemented illegal policies and practices with regard to recruiting, hiring, and maintaining a disproportionately Caucasian sales force." (Campbell Dep., Exh. A at 203-206.)*fn2 In essence, Campbell alleges that Caucasians were placed in the higher paid "Brand Representative" positions, whereas minorities were categorically relegated to the lower-wage, stockroom positions. (Opp. Br. at 2-4.) The facts concerning these alleged practices play no part in the issue before the Court, and therefore, need not be elaborated on any further. On May 12, 2003, Campbell made oral complaints of race discrimination to Chris Grindey ("Grindey"), an A&F Corporate Loss Prevention Manager, John Carriero (Carriero), Senior Manager of Security, and Corey Routh ("Routh"), Senior Director of Human Resources alleging that he had personally witnessed discrimination in the hiring of certain Brand Representative positions. (Opp. Br. at 4-5.) Campbell alleges that these complaints were met with "immediate hostility" and that he was threatened with the loss of his job by Carriero and Routh. (Campbell Dep., Exh. A at 52, 62.) Carriero and Routh dispute that these threats were made. Campbell testified that he "was advised to cease investigating the company's hiring practices because they `don't practice discriminatory hiring practices." (Campbell Dep., Exh D. at 64-65.) In response to these alleged threats, Campbell told Carriero and Routh that he had been in contact with the Equal Opportunity Commission ("EEOC"). (See Campbell Dep., Exh. A, at 83.)*fn3

  On May 13, 2003, Campbell committed these complaints to writing and sent the writing via fax to Routh. (Campbell, Exh. E.) Routh and Carriero again spoke to Campbell and Campbell testified that both Carriero and Routh took his concerns seriously, that they would conduct a full investigation, and that they were happy he had come forward with the information. (Campbell Dep., Exh. A at 77-79.) Routh testified that Campbell refused to give specific information about his allegations, and therefore, turned over the investigation to A&F Human Resources Representative, Eric Duerksen ("Duerksen") (Routh Dep. at 14-18.) Duerksen states, without contradiction from Campbell, that A&F initiated an investigation based upon Campbell's claims and interviewed the Cherry Hill store manager. (Duerksen Dep. at 9-15.) On or about May 20, 2003, Duerksen interviewed Campbell about the alleged discriminatory employment practices. (Campbell Dep., Exh. A, at 119-120.) Campbell states that Duerksen allegedly treated him in a hostile manner. (Id. at 123.) Duerksen testified that he thanked Campbell for coming forward, yet Campbell refused to give any additional information. (Duerksen Dep. at 16-18.)*fn4 Thus, A&F proceeded in its investigation without the assistance of Campbell. No one, including Campbell, suggests that he was involved in an A&F investigation concerning discriminatory hiring practices. Carriero states that Campbell asked him if he could visit other stores, to which Carriero told Campbell to concentrate on his security responsibilities at the Cherry Hill store. (Carriero Dep. at 16-17.) Further, Campbell, admits that the King of Prussia store was outside his jurisdiction, see Campbell Dep., Exh. A at 164-166, and that he had no authority to conduct human resources investigations, id. at 14.

  Nevertheless, on June 23, 2003, while on a personal day, see Campbell Dep., Exh. A, at 145, Campbell visited A&F's King of Prussia store in order to "uncover discriminatory hiring practices." (Campbell Dep., Exh. D at 63.) Campbell testified that he hoped to obtain "proof" of discrimination to support his claims. (Exh. A, 159, 183.), and provide footage for Fox News, see Exh. D at 15-16. Campbell approached the store manager and told him, "I do security supervisor [sic] for the company. I do investigations." (Exh A., at 163.) Campbell testified to showing the store manager an employee identification card, and stated that he expected to replace the existing security supervisor in King of Prussia. (Id. at 164.) Campbell, however, had not officially assumed any duties at the King of Prussia store. (Id. at 166.) Campbell stated that he "wanted to talk to a couple of the overnight workers." (Id.) Campbell did not disclose his actual reason for coming to the King of Prussia store to the store manager. (Id.) Instead, Campbell inferred that part of the reason he was paying a visit was because the King of Prussia store had a "shrink" [theft] problem. (Id. at 167-168.)*fn5

  Campbell proceeded to the back stockroom by himself, questioned six or seven minority overnight stockroom workers, and made copies of the work schedules. (Exh. A at 171-72, 179-80.) Campbell looked through at least one personal jacket and determined the hourly wage of one stockroom employee. (Id. at 174, 179.) Campbell then proceeded back on the sales floor, approached some brand representatives, "showed them my badge so they would feel comfortable," and questioned these employees about their hourly wage. (Id. at 175.) All told, Campbell estimates it was a 20 minute visit. (Id.)

  On June 23, 2003, Campbell and his attorney appeared on a Fox News broadcast in which Campbell stated his intention to file a civil lawsuit against A&F for discriminatory employment practices. (Campbell Dep., Exh D. at 65-66.) On June 24, 2003, Campbell was informed during a telephone conference with Routh, Carriero, and district manager Sarah Nicholson ("Nicholson") that he was terminated because he had misrepresented himself and conducted an unauthorized investigation at the King of Prussia store. (Campbell Dep., Exh. A. 192-93; Exh. D. at 68-69.) No evidence has been proffered indicating that the Fox News broadcast played any part in the decision to terminate Campbell; nor, can any inference be drawn that the corporate office in Columbus, Ohio was aware of the broadcast that occurred in the Philadelphia area the night before.

  II. DISCUSSION

  A. Summary Judgment Standard

  A court will enter a summary judgment only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the non-moving 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 non-moving 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 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the non-moving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. at 324. The non-moving party may not rest upon the mere allegations or denials of its pleading. Id.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994).

 
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails 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.
Celotex, 477 U.S. at 322.

  On a motion for summary judgment, the court does not "weigh the evidence and determine the truth of the matter, but [instead] determine[s] whether there is a genuine issue for trial." Anderson, 477 U.S. at 242-43. Credibility determinations are the province of the factfinder. Big ...


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