United States District Court, D. New Jersey
August 3, 2005.
JAMES REDDING, JR. and TRACI PARNELL-REDDING, wife, Plaintiffs,
OWENS CORNING, JOHN DOES 1 through 10, JANE DOES 1 through 10, ABC COMPANIES 1 through 100, XYZ PARTNERSHIPS 1 through 100 (being fictitious parties), Defendants.
The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This matter comes before the Court on defendant Owens Corning's
motion for summary judgment pursuant to Fed.R.Civ.P. 56. In their response to the summary judgment motion, the
plaintiffs filed a cross-motion to extend discovery.
James Redding, Jr. ("plaintiff Redding") and his wife, Traci
Parnell-Redding ("plaintiff Parnell-Redding"), filed a Complaint
(the "Complaint") in the Superior Court of New Jersey, Law
Division, on February 20, 2004. The Complaint alleges
discriminatory employment practices, infliction of emotional
distress, defamation and a loss of consortium claim against
plaintiff's employer Owens Corning (the "defendant") and
fictitious defendants. The Complaint was properly removed to this
Court. The Court has diversity jurisdiction here as plaintiffs
are New Jersey citizens and defendant, incorporated in Delaware,
maintains its principal place of business in Ohio. The amount in
controversy requirement is met. (See Notice of Removal, ¶ 8).
On July 7, 2004, this Court issued an Opinion and Order
dismissing the defamation claims (Counts Three and Four of the
Complaint). See Redding v. Owens Corning, Civil 04-1971(JWB)
(Opinion and Order, July 7, 2004). On April 11, 2005, defendant
Owens Corning filed the instant motion for summary judgment on
the remaining Counts: One, Two and Five. Thereafter, on June 14,
2005, plaintiffs filed their cross-motion to extend discovery. FACTS
The Court will rely upon the facts as set forth in the July 7,
2004 Opinion. See Redding v. Owens Corning, Civil
041-971(JWB) (Opinion, July 7, 2004).
I. Standard for Summary Judgment Motion Pursuant to Rule 56
Federal Rule of Civil Procedure 56(c) provides that summary
judgment should be granted "if 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); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Kreschollek v. Southern Stevedoring Co., 223 F.3d 202, 204 (3d
Cir. 2000). In deciding a motion for summary judgment, a court
must construe all facts and inferences in the light most
favorable to the nonmoving party. See Boyle v. Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party
bears the burden of establishing that no genuine issue of
material fact remains. See Celotex Corp. v. Catrett,
477 U.S. 317 (1986).
The Supreme Court has stated that in evaluating a defendant's
motion for summary judgment:
[t]he judge must ask . . . not whether . . . the
evidence unmistakably favors one side or the other but whether a fair-minded jury could return a
verdict for the plaintiff on the evidence presented.
The mere existence of a scintilla of evidence in
support of the plaintiff's position will be
insufficient; there must be evidence on which the
jury could reasonably find for the plaintiff. The
judge's inquiry, therefore, unavoidably asks whether
reasonable jurors could find by a preponderance of
the evidence that the plaintiff is entitled to a
verdict. . . .
Anderson, 477 U.S. at 252. A fact is "material" only if it will
affect the outcome of a lawsuit under the applicable law, and a
dispute over a material fact is "genuine" if the evidence is such
that a reasonable fact finder could return a verdict for the
nonmoving party. (See id.)
Only evidence that would be admissible at trial may be used to
test a summary judgment motion; evidence with a deficient
foundation must be excluded from consideration. See Blackburn
v. United Parcel Service, Inc., 1999 WL 360546 (3d Cir. 1999).
In order to survive a motion for summary judgment, the non-moving
party must present more than a mere scintilla of evidence in his
favor. (Id.) The non-moving party "cannot simply reallege
factually unsupported allegations contained in his pleadings."
Anderson, 477 U.S. at 249; see also Clark v. Clabaugh,
20 F.3d 1290, 1294 (3d Cir. 1994).
II. Count One" NJLAD Claim
A. Establishing a Claim for Wrongful Termination in Violation
of the NJLAD
In the First Count of the Complaint, plaintiff Redding alleges that in terminating him from the employ of Owens Corning,
defendants unlawfully discriminated against him on the basis of
race in violation of the New Jersey Law Against Discrimination
("NJLAD"). The same methodology used to prove claims of
employment discrimination under Title VII of the Civil Rights Act
applies to claims under the NJLAD. See Marzano v. Comp.
Science Corp., 91 F.3d 497, 502 (3d Cir. 1996); Hyman v.
Atlantic City Med. Ctr., 1998 WL 135249, *27 (D.N.J. Mar. 16,
1998). A plaintiff may present direct evidence of the prohibited
discrimination, but if he cannot, he must demonstrate
discrimination under the burden-shifting analysis set forth by
the Supreme Court of the United States in McDonnell-Douglas
Corp. v. Green, 411 U.S. 792 (1973).
In McDonnell-Douglas, the Court set the analytical framework
for establishing a prima facie case of discrimination. A
plaintiff must prove by a preponderance of the evidence that (1)
he is a member of a protected class, (2) he performed his duties
at a level that met his employer's reasonable expectations, or
was qualified for the position, (3) he was discharged, and (4)
the decision occurred under circumstances giving rise to an
inference of discrimination. See Josey v. John R.
Hollingsworth Corp., 996 F.2d 632 (3d Cir. 1993); Watkins v.
Nabisco Biscuit Co., 224 F. Supp. 2d 852, 866 (D.N.J. 2002
(Greenaway, J.) (under Title VII and the NJLAD);*fn1 McConnell v. State Farm Mut.
Ins. Co., 61 F. Supp. 2d 356, 362 (D.N.J. 1999) (Walls, J.)
(under the NJLAD).
Only if and after the plaintiff makes this showing does the
"burden shift? to the defendant to articulate some legitimate,
nondiscriminatory reason for the employee's rejection. . . .
Should the defendant carry this burden, the plaintiff must then
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." Watkins,
224 F. Supp. 2d at 861 (quoting Texas Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 252-53 (1981)). The heavier burden of persuasion stays with
the plaintiff who must show by a preponderance of the evidence
"both that the [employer's proffered] reason [for termination]
was false, and that discrimination was the real reason." St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993); see
also Clowes v. Terminix Intern., Inc., 109 N.J. 575, 595
In the case at bar, the defendant contends that plaintiff
Redding cannot make such a showing. Specifically, defendant
argues that plaintiff Redding "was not performing his job at a
level that was meeting Owens Corning's legitimate expectations when the Company discharged him." (Defendant's Br. at 7).
To survive the defendant's summary judgment motion, plaintiff
Redding "must point to some evidence, direct or circumstantial,
from which a fact finder 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) (citing
Hicks, 509 U.S. at 510-11). Plaintiff's evidence rebutting
defendants' proffered legitimate reasons must "allow a fact
finder 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
termination." Fuentes, 32 F.3d at 764.
B. The Plaintiff has not Established a Prima Facie Claim Under
In this case, defendant does not contest that plaintiff Redding
is in a protected class and that his employment was terminated.
(See Defendant's Br. at 7). Defendant, however, points to
plaintiff Redding's "personnel file at Owens Corning [which] was
rife with written warnings, internal memoranda, and other items
documenting his continuing conduct issues in the workplace."
(Id.) Defendant refers specifically to an instance where
plaintiff Redding had "been counseled for verbally abusing and using inappropriate language towards a female coworker."
(Id. at 8).*fn2 In response, plaintiff Redding submits to
this Court that "he did not make any threat," and that he denies
using "abusive language" against a coworker. (See Plaintiffs'
Br. at 18).
Based on the evidence presented by the defendant, the Court
determines that plaintiff Redding could not establish at a trial
that he was performing his duties at a level that met Owens
Corning's reasonable expectations. Defendant Owens Corning has
submitted numerous exhibits supporting it's conclusion that
plaintiff Redding was not performing his duties adequately.
(See, e.g., Barone Cert., Exh. B (co-worker complaint against
plaintiff Redding), Exh. C (Personnel Action Form), Exh. D (Oct.
22, 2001 e-mail regarding incident with plaintiff Redding), Exh.
E (Feb. 2, 2002 memorandum from Mr. Matech), Exh. F (Feb. 7, 2002
e-mail from Mr. Matech), Masselli Cert. at Exh. C (numerous
e-mails from Steve Reuter dating from November 5, 1999 until June 27, 2000), Exh. E (Personnel Action Form). Defendant Owens
Corning did not reasonably expect that its employee would
verbally abuse or use inappropriate language with a co-worker.
Neither would Owens Corning reasonably expect an employee to have
numerous complaints against him for his abrasive and
inappropriate behavior as well as multiple absences from work.
For these reasons, plaintiff Redding has failed to establish a
prima facie case for discrimination under the NJLAD. The
Court will continue the analysis, however, to address all
C. Assuming a Prima Facie Case Could be Established, Plaintiff
Still Cannot Survive Defendant's Summary Judgment Motion
Where a plaintiff establishes a prima facie case for
discrimination under the NJLAD, a presumption arises that the
employer unlawfully discriminated against the employee. See
e.g., Bergen Commercial Bank v. Sisler, 157 N.J. 188, 210
(1999); Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). To rebut the presumption, "the employer in the
second stage of the process must come forward with admissible
evidence of a legitimate, non-discriminatory reason for its
rejection of the employee." Sisler, 157 N.J. at 211.
The Superior Court of New Jersey, Appellate Division, has
stated that courts "must not lose sight of the fact that an
employer can legally discharge an employee without violating employment discrimination statutes for good reason, bad reason,
or no reason at all, as long as there is no intentional
discrimination." Maiorino v. Schering-Plough Corp,
302 N.J. Super. 323, 345 (1997) (quoting Walker v. A T & T Technologies,
995 F.2d 846, 850 (8th Cir. 1993)). Defendant Owens Corning
carries only the burden of production, and not the burden of
persuasion, to show a legitimate, nondiscriminatory reason for
its action. (See id at 347). "It is sufficient if the
defendant's evidence raises a genuine issue of fact as to whether
it discriminated against the plaintiff." Burdine,
450 U.S. at 254. Moreover, Owens Corning does not need to show that its
proffered reason was an actual motivator of its behavior because
the burden of proving intentional discrimination always remains
with the plaintiff employee. See Martinez v. National Broad.
Co., 877 F. Supp. 219, 228 (D.N.J. 1994).
In the case at bar, Owens Corning has presented a legitimate
nondiscriminatory reason for terminating plaintiff Redding. At
the time of his termination, defendant Owens Corning believed
that plaintiff Redding had threatened his supervisor. According
to defendant, "plaintiff was discharged because he had made
verbal threats against his supervisor in violation of [Owens
Corning's] Non-Harassment Policy." (Defendant's Br. at 9).
Defendant's proffered reason meets the necessary standard under
Maiorino, 302 N.J. Super. at 345, and Martinez, 877 F. Supp.
at 228 (stating that the employer does not need to show the reason
was an "actual motivator" of the termination). Defendant Owens
Corning has met its burden of presenting a legitimate
nondiscriminatory reason for terminating plaintiff Redding based
on the alleged threat made to his supervisor.
Where an employer produces evidence of a legitimate
nondiscriminatory reason, the presumption of discrimination
disappears. See Sisler, 157 N.J. at 211 (citing St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993)). In the third
and final stage of the process the burden of production then
shifts back to the employee, who has "the opportunity to prove by
a preponderance of the evidence that the legitimate
nondiscriminatory reason articulated by the defendant was not the
true reason for the employment decision but was merely a pretext
for discrimination." (Id., quoting Andersen v. Exxon Co.,
USA, 89 N.J. 483, 493 (1982)).
In this case, the plaintiff "may meet this burden either by
persuading the court directly that a discriminatory reason more
likely motivated the employer or indirectly by showing that the
employer's proffered explanation is unworthy of credence."
(Id.) Assuming that plaintiff had presented a prima facie
case for discrimination under the NJLAD, the defendant has met
its burden of presenting a legitimate nondiscriminatory reason
for Mr. Redding's termination. Therefore, the burden now shifts
back to plaintiff Redding.
As stated previously, for plaintiff Redding to survive
defendant's summary judgment motion, he "must point to some
evidence, direct or circumstantial, from which a fact finder
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,
32 F.3d at 764 (citing Hicks, 509 U.S. at 510-11)). In this case,
plaintiff Redding has failed to do either.
According to the Third Circuit, to discredit an 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." Fuentes, 32 F.3d at 765. Furthermore, the court in
Fuentes presented a difficult standard for the non-moving
[He] 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.) This difficult standard "arises from an inherent tension
between the goal of all discrimination law and our society's commitment to free decisionmaking by the private sector in
economic affairs." Ezold v. Wolf, Block, Schorr & Solis-Cohen,
983 F.2d 509
, 531 (3d Cir. 1992).
Plaintiff has not presented any evidence, direct or
circumstantial, that would rebut the defendant's articulated
legitimate reason. Furthermore, plaintiff has not presented
evidence that an invidious discriminatory reason was more likely
than not a motivating or determinative cause of Owens Corning's
Plaintiff relies on the fact that the neutral arbitrator found
in Mr. Redding's favor and ordered his reinstatement. (See
Plaintiffs' Br. at 6 ("Clearly, the result of the arbitration
showed that Owens could not prove that Redding not only acted
improperly from February 2 to February 7, 2002, but also he did
not pose a threat to individuals in the company."). Plaintiff
Redding has failed to present more than a mere scintilla of
evidenced in his favor, but rather he simply relies on factually
unsupported allegations. Plaintiff Redding has not presented
adequate evidence to rebut defendant Owens Corning's proffered
legitimate nondiscriminatory reason for his termination. For the
foregoing reasons, plaintiff cannot survive defendant's motion
for summary judgment as to the NJLAD discrimination claim. II. Count Two: Intentional Infliction of Emotional Distress
A. Standard for an Action for Intentional Infliction of
In order to sustain a cause of action for intentional
infliction of emotional distress, a "plaintiff must establish
intentional and outrageous conduct by the defendant, proximate
cause, and distress that is severe." Taylor v. Metzger,
152 N.J. 490, 509 (1998) (quoting Buckley v. Trenton Sav. Fund
Soc'y, 111 N.J. 355-365-67 ((1988)). "The conduct must be so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community."
(Id.) Additionally, "plaintiff must prove that the defendant
acted intentionally or recklessly . . . both to do the act and to
produce emotional distress." (Id. at 513). To qualify as
"severe emotional distress," a plaintiff must allege a "severe
and disabling emotional or mental condition which may be
generally recognized and diagnosed by professionals trained to do
so." Taylor, 152 N.J. at 514 (quoting Poole v. Copland, Inc.,
125 N.C. App. 235 (1997) (internal quotation marks omitted).
A court may determine, as a matter of law, whether a
defendant's conduct as alleged was so outrageous and extreme that
it would support a cause of action for intentional infliction of
emotional distress. "Only where reasonable [persons] may differ is it for the jury, subject to the control of the court, to
determine whether the conduct alleged in this case is
sufficiently extreme and outrageous to warrant liability."
McConnell v. State Farm Mut. Ins. Co., 61 F. Supp. 2d 356, 363
(quoting Cautilli v. G.A.F. Corp., 531 F. Supp. 71, 74 (E.D.
B. The Plaintiffs have Failed to State a Cause of Action for
Intentional Infliction of Emotional Distress
According to the plaintiffs, "the defendant's conduct was
outrageous." (See Plaintiffs' Br. at 26). The following is a
representation of the examples of the outrageous behavior alleged
by the plaintiff against the defendant: (1) harassed plaintiff
Redding "over an extended period of time by berating him at every
opportunity," (2) "favored others" over him, (3) "disciplined him
on a regular basis," (4) lied about [plaintiff Redding's]
conduct," (5) "yelled, screamed at him and used profanities and
racial epithets*fn3 and conducted racially-charged actions
against him" and (6) "fired him for no reason." (See id.)
Furthermore, plaintiff Redding alleges that he suffered from loss
of sexual desire, loss of sleep, stress, and he "was grouchy and
complained to his wife all the time." (Id.) Plaintiff Traci
Parnell-Redding claims that her action for loss of consortium and emotional distress (Count Five) is "predicated on the tort of
emotional distress visited upon her through the manner her
husband was mistreated at work." (Id. at 28).
This Court finds that the claims by plaintiff Redding and
plaintiff Parnell-Redding do not reach the level of extreme and
outrageous conduct necessary to establish an intentional
infliction of emotional distress claim. "Generally speaking, to
establish a claim for intentional infliction of emotional
distress, the plaintiff must establish intentional and outrageous
conduct by the defendant, proximate cause, and distress that is
severe." Buckley v. Trenton Saving Fund Society, 111 N.J. 355,
366 (1988). The allegations made by plaintiff Redding and
plaintiff Parnell-Redding, even if true, do not rise to the level
of outrageous and "no reasonable fact-finder could conclude that
defendants' conduct satisfied the standard for intentional
infliction of emotional distress." (Id.) Rather, the
allegations, even if true, would be in the nature of not uncommon
employment conflicts and do not rise to the level of extreme or
outrageous conduct, as quantified in Taylor v. Metzger. For the
foregoing reasons, defendants' motion for summary judgment as to
Counts Two and Five of the Complaint must be sustained.
III. Plaintiffs' Cross-Motion to Extend Discovery
On June 14, 2005, the plaintiff filed a cross-motion to extend
discovery. According to the plaintiffs, "[j]ustice and fairness requires [sic] that discovery be extended." (See
Plaintiffs' Br. at 28). Plaintiff argues that "there was an
excusable delay in the conduct and completion of discovery" as a
result of "a confusing situation that involved four attorneys and
the Court." (Id. at 29). The crux of plaintiffs' argument is
that mis-communication between attorneys regarding representation
of the plaintiffs led to confusion that prevented the plaintiffs
from conducting any discovery. (See id.)
While not asserting that rule specifically, the plaintiffs'
motion is in the nature of a Rule 56(f) motion. According to that
Should it appear from the affidavit of a party
opposing the motion that the party cannot for reasons
stated present by affidavit facts essential to
justify the party's opposition, the court may refuse
the application for judgment or may order a
continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may
make such other order as is just.
Absent a showing by the plaintiff that denial of his motion to
extend discovery would deprive him of crucial evidence or would
result in fundamental unfairness, the Court has broad discretion
in deciding whether to permit additional discovery. Habecker v.
Clark Equip. Co., 942 F.2d 210, 218 (3d Cir. 1991); Wisniewski
v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987).
Furthermore, a party seeking to reopen discovery in response to a summary judgment motion must demonstrate: (1) the
particular information sought; (2) how the information would
preclude summary judgment; and (3) why it has not previously been
obtained. Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d
Cir. 1994) (quoting Dowling v. City of Philadelphia,
855 F.2d 136, 140 (3d Cir. 1988).
For this Court to grant the plaintiffs' motion, "he must state
by affidavit the reasons for his inability to do so and these
reasons must be genuine and convincing to the court rather than
merely colorable." Mid-South Grizzlies v. National Football
League, 720 F.2d 772, 779 (3d Cir. 1983). Furthermore, the Third
Circuit has stated that it "is not enough to rest upon the
uncertainty which broods over all human affairs or to pose
philosophic doubts regarding the conclusiveness of evidentiary
facts. In the world of speculation such doubts have an honored
place, but in the daily affairs of mankind and the intensely
practical business of litigation they are put aside as
conjectural." (Id. at 779-80).
In this case, plaintiffs have not articulated either the
particular information sought or how the information would
preclude summary judgment. Furthermore, the stated reason for the
delay in previously obtaining the requested discovery is
unpersuasive. Defendants state that "the four witnesses [counsel
for plaintiffs] seeks to depose Monday Matech, Vincent Cooke, Thomas Masselli, and John Barone were listed in Owens Corning's
Rule 26 Disclosures that were provided to plaintiff's counsel
more than 10 months ago." (Defendants' Br. at 16).
According to plaintiffs' counsel, during the time of confusion
regarding who was to represent the plaintiffs, "two witnesses,
Matech and Vinnie Cooke, had contacted the plaintiffs claiming to
have evidence (including a recording) of the defendant's
discrimination against Redding." (Plaintiffs' Br. at 12).
Plaintiffs' brief further states: "the case may suffer from
insufficiency of discovery since the two witnesses will not have
been deposed and other discovery issues explored based on those
depositions." (Plaintiffs' Br. at 29).
In the case at bar, it seems that the plaintiffs' inability to
conduct discovery falls under the "uncertainty which broods over
all human affairs." Mid-South Grizzlies, 720 F.2d at 779. While
there was confusion regarding plaintiffs' representation, there
was no confusion regarding the date when discovery would end. Nor
was there confusion regarding which individuals were being made
available through defendants' Rule 26 disclosures. Therefore,
plaintiffs had ample opportunity to conduct adequate discovery
during the appropriate period. For the foregoing reasons, the
plaintiffs' cross-motion to extend discovery must fail. CONCLUSION
For the foregoing reasons, defendants' motion for summary
judgment as to Counts One and Two of the Complaint, brought by
Mr. Redding, is granted. Plaintiffs' cross-motion to extend
discovery is denied. All of Mr. Redding's claims having now been
dismissed, Ms. Parnell-Redding's claim for loss of consortium
(Count Five) has no foundation; therefore, summary judgment in
the defendants' favor is entered upon that claim as well. This
action is now dismissed in its entirety.