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August 3, 2005.

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, ΒΆ 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 ...

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