United States District Court, D. New Jersey
October 7, 2005.
EDNY TASSY., Plaintiffs,
STRYKER HOWMEDICA OSTEONICS a/k/a, STRYKER HOWMEDICA OSTEONICS CORP. Defendant.
The opinion of the court was delivered by: WILLIAM MARTINI, District Judge
This matter comes before the Court on Defendant Stryker
Howmedica Osteonic's, d/b/a Stryker Orthopaedics' ("Stryker"),
motion for summary judgment to dismiss Plaintiff Edny Tassy's
("Tassy") employment discrimination action under
42 U.S.C. § 2000e ("Title VII"), 42 U.S.C. § 1981 ("Section 1981") and the
New Jersey Law Against Discrimination (N.J.S.A. 10:5-1 et seq).
("N.J.L.A.D."). There was no oral argument. Fed.R.Civ.P. 78.
For the reasons set forth below, Stryker's motion is GRANTED
and Tassy's Complaint is DISMISSED WITH PREJUDICE in its entirety.
Stryker manufactures medical implant devices, such as knees,
hips and spines. Tassy is an African-American male. In 1989,
Stryker hired Tassy as a Polisher on the night shift at the
company's plant in Allendale, New Jersey. In this role, Tassy
polished "caps and heads" to be incorporated into hip implants.
See Compl. ¶ 3; Rule 56.1 Statement in Support of Defendant's
Motion for Summary Judgment ¶ 28 (hereinafter Deft's Rule 56.1
St.). Tassy claims that from the beginning of his employment at
Stryker, Caucasian employees received more and better training
than him. See Compl. ¶ 3. Tassy does not specify what training,
though, he did not receive. Tassy, however, concedes that he did
receive some on the job training. In particular, he states that
he received training on how to mix "slurry" and polish pieces in
1989. Id. In addition, he concedes that a co-worker trained him
on buffing from 1990 to 1991 when business was slow.
Throughout Tassy's tenure at Stryker, his personal record is
replete with unsatisfactory performance appraisals. For instance,
Tassy's initial performance appraisal from 1989 rated him as
"Needs Improvement" regarding "knowledge of work" and
"initiative." See Declaration of Lauri A. Mazzuchetti, Exh. E (hereinafter LM Decl.). In
addition, Tassy received written warnings in 1989 and 1990 for
absences and tardiness. See id. As a result of these warnings,
Stryker placed Tassy on a 90-day probationary period in 1990.
Id. at Exh. F.
In 1991, Tassy applied for the first of six positions he sought
while at Stryker. Id. at ¶ 4; See LM Decl. Exh Z. The
position he sought was in the Grinding Department. Id. Stryker
offered Tassy the positon, which he accepted. Id. While in the
Grinding Department, Tassy claims that another employee trained
him on grinding "from time to time" and that he received "minimal
instruction on grinding" in 1994. See Compl. ¶ 4. Again, Tassy
received some adverse appraisals during this time. For instance,
Tassy's initial performance appraisals for 1991 rated him as
"Needs Improvement" regarding "quality of work" and his 1991
performance appraisal noted that his rework rate was
"high."*fn3 See LM Decl. Exh. E.
In 1994, Stryker relocated its manufacturing facility to
Mahwah, New Jersey. At Mahwah, Stryker divided its manufacturing
processes into "cells." See Compl. ¶ 5; Deft's Rule 56.1 St. ¶
11. Under this approach, each cell is responsible for a different
aspect of the manufacturing process. See Deft's Rule 56.1 St. ¶
11. The cells are composed of "team-members" with the title of
"Fabrication Specialist" or "Generalist" and are led by a Team
Leader who reports to the Steering Team.*fn4 Id. at ¶¶ 13,
19. Tassy worked as a Generalist in the UHR/Acetabular Cell,
which produces hip implants. Id. at ¶¶ 35, 37. He remained a
Generalist in this cell until termination. See id. at ¶ 15; Pl.
Opp. at 1-2; Deft's Rule 56.1 St. ¶ 37. During the beginning of his stay at Stryker's Mahwah facility, Tassy
alleges that he requested further training and a promotion to the
level of "Machinist" but was denied such requests. See Compl. ¶
6. In response, Stryker contends that Tassy received the same
training as every other employee and, regardless, there is no
"Machinist" position at the company. Deft's Rule 56.1 St. ¶
In 1996, Tassy made his second application for a different
position. See LM Decl. Exh. Z. He applied for a team member
position in another cell. See id. Tassy's request was denied.
Id. Then, from 1997 to 1998, Tassy applied for four more
positions in various cells.*fn6 See LM Decl. Exh. Z; LM
Decl. Exh. D at 61:13-62:22. The last job he applied for was
"Generalist-Machinist" in the "Cap Cell" on August 3, 1998. See
LM Decl. Exh. Z. All of Tassy's requests were in response to "job
postings" located in different cells where everyone could observe
which jobs were available. See Compl. ¶ 6.*fn7
Tassy's employment record after Stryker's relocation to Mahwah
again exhibits certain performance deficiencies. For example, a
1996 Team Member Feedback Form rated Tassy's performance "below
expectations" in terms of "team skills," "quantity and quality"
and "customer focus." See LM Decl. Exh. G. As a result of this
unsatisfactory review, Tassy was reviewed again. See LM Decl.
Exh. H. This time, he was rated as "meeting team expectations" in
terms of "quality and quantity" and "customer focus," but "below
team expectations" in terms of "team skills." Id.
Tassy also received a verbal warning in February 1996 for
quality deficiencies. See id. at Exh. J. The warning stated
that any further unsatisfactory performance would result in a
suspension. Id. Then, in April 1997, Tassy received another
verbal warning for approving an implant for final inspection
without identifying the proper identification number of the
implant. See id., at Exh. J. This constituted a quality error
because the FDA requires product traceability. Deft's Rule 56.1
St. ¶ 48.
In 1999, Stryker placed Tassy on the day shift. See Compl. ¶
8. According to Tassy, he agreed to the move because Stryker
promised more and better training. Id. Tassy claims, though,
that he never received training as promised. Id. Furthermore,
Tassy claims that when he sought additional training, his efforts
were frustrated. Id. at ¶ 9. The only instance Tassy points out
to substantiate this claim is an instance where another
individual tried to explain to Tassy how to fix a grinding
machine, and a man by the name of "Mr Camacho" told the
individual not to instruct Tassy further. Id.
Over the next two years, Tassy received more adverse
performance appraisals. In January 2000, Tassy received a written
warning for three quality problems occurring over three days.
See LM Decl. Exh. L. The report stated that, as a result, Tassy
would be retrained in all aspects of the quality problems at
issue in the warning. See id. In addition, the report stated
that future occurrences of the same quality problems would result
in suspensions. See id. Three months later, in March 2000, a Team Member Feedback Form rated Tassy's
performance "below team expectations" in terms of "quantity and
quality." See LM Decl. Exh. M. Furthermore, Tassy's Annual
Review for that year also stated that "[Tassy] generated the
highest scrap rate of any . . . team member," "[Tassy's]
performance has needed constant monitoring and has required
several discussions about his lack of productivity," "[Tassy] did
not generate quality product on a consistent basis . . .,"
"[Tassy] does not maintain a consistent level of production that
meets team expectations," and so forth. See id.
Later that year, in June 2000, a Caucasian employee that Tassy
was training damaged a device. Compl. ¶ 12.a. Tassy claims that
he was deemed responsible and suspended when the broken part was
discovered. Id. According to Tassy, other white employees made
similar errors and were not suspended or disciplined. Id. Then,
in December 2000, Tassy received a verbal warning for excessive
late arrivals. See LM Decl. Exh. N. The record of verbal
warning stated that Stryker's electronic swiping system, which
recorded Tassy's entry into its facility, differed from the
submissions on his time sheets. See id. Tassy was warned that
"further occurrences against the attendance/absenteeism policy
[would] result in further disciplinary action." See id.
A year later, in 2001, Stryker received a "Product Experience
Report" from an orthopedic surgeon indicating that a bipolar hip
prosthesis manufactured by Stryker failed after it was implanted
into the patient. See LM Decl. Exh. O. Stryker conducted an
investigation of the product's router the system it uses to
trace the manufacturing of implants and determined that the
defect was directly traceable to work performed by Tassy. See
id. Consequently, Stryker suspended Tassy for three days. See
id. The warning report documenting this issue stated that "[a]ny
future occurrences of this nature [would] result in further
disciplinary action up to and including termination." See id.
Then, in December 2001, Tassy signed a router indicating that
he completed the "laser mark" operation for twenty-one implants.
See LM Decl. Exh. P. Tassy, however, did not actually laser
mark the implants because the laser in his cell was not working
that day. See Deft's Rule 56.1 St. ¶ 69; LM Dcl. Exh. P. Tassy
claims that he asked another employee in a different cell to use
his laser, but his request was denied. Compl. ¶ 12.b. A record of
written warning documenting this issue stated that Tassy left the
signed paperwork with the unmarked parts and told a second shift
operator to mark the parts as soon as the laser was operational.
See LM Decl. Exh. P. According to the report, this constituted
a major quality violation. See id. As a result, Stryker
suspended Tassy for three days. See id. In addition, Stryker
placed Tassy on a second 90-day performance improvement plan.
In September 2002, Tassy was working on an implant device
without a visible core number, which indicates the size of the
part. See Compl. ¶ 14; Pl. Opp. at 5-6. Tassy undertook an
operation called "stoning" to uncover the part's size, but the
number was still not visible. See id. Tassy then proceeded to
write the size of the part on the inside with a black magic
marker. See id. After writing the size on the part, he placed
it on a rack for the next employee to work on it, where it was
eventually discovered. See id.; Deft's Rule 56.1 St. ¶ 77. This
action, according to Stryker, violated the company's quality
procedures and FDA standards because it compromised the sterility
of the piece. See Deft's Rule 56.1 St. ¶ 79; Pl. Opp. at 3. In
response, Tassy claims that the marker was provided for the
purpose of marking pieces and that marking pieces was a common
practice at Stryker. Compl. ¶ 3; Pl. Opp. at 6. Tassy also
contends that the person who was supposed to grind the part was
responsible for removing the black magic marker but failed to do so. Compl. ¶ 14. Finally, Tassy claims that
other white employees marked pieces with magic markers without
being disciplined. Compl. ¶ 14; Pl. Opp. 6.
Stryker fired Tassy on September 9, 2002. Compl. ¶ 14; Deft's
Rule 56.1 St. ¶ 80. Tassy subsequently sued Stryker on December
23, 2003, under Title VII, Section 1981, and the N.J.L.A.B., for
failing to train and promote him.*fn8 Stryker moved for
summary judgment to dismiss the complaint. This motion is now
before the Court.*fn9
I. Standard of Review Summary judgment eliminates unfounded claims without recourse
to a costly and lengthy trial. See Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986). A court should grant summary judgment,
however, only "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 judgment
as a matter of law." FED. R. CIV. P. 56(c). Once the moving party
has made a properly supported motion for summary judgment, the
burden shifts to the nonmoving party to "set forth specific facts
showing that there is a genuine issue for trial." FED. R. CIV. P.
56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). No issue for trial exists unless the nonmoving party can
demonstrate sufficient evidence favoring it such that a
reasonable jury could return a verdict in that party's favor.
See id. at 249. Unsworn assertions by the non-moving party that
contradict sworn and proper affidavits submitted by the moving
party will not create a material issue of fact. See Fireman's
Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir.
II. The McDonnell Douglas Burden-Shifting Analysis
The Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) established the burden shifting framework by
which courts analyze cases of discrimination under Title VII,
Section 1981 and the N.J.L.A.D. See Patterson v. McLean Credit
Union, 491 U.S. 164, 186 (1989); Williams v. Rohm & Haas Co.,
90 Fed. Appx. 627, 629 (3d Cir. 2004); Lehman v. Toys `R' Us,
Inc., 132 N.J. 587, 600-01 (1973). This framework applies to
both failure to promote and failure to train claims. See Bethea
v. Ford Motor Co., No. 92-844, 1993 U.S. Dist. LEXIS 940, at
*20-21 (D.N.J. Jan. 25, 1993).
First, plaintiff has the burden, by a preponderance of the
evidence, to make out a prima facie case of discrimination based on race. McDonnell Douglas
Corp., 411 U.S. at 802. Regarding Tassy's failure to promote
claim, he must show: (1) he is a member of a protected class; (2)
he sought and was qualified for the promotion; (3) he was
rejected for the promotion; and (4) a non-member of the protected
class was treated more favorably. See McDonnell Douglas,
411 U.S. at 802; Young v. Pennsauken Twp. Sch. Dist.,
47 Fed. Appx. 160, 161 (3d Cir. 2002). Regarding Tassy's failure to train
claim, he must show: (1) he is a member of a protected class; (2)
that the employer provided training to its employees; (3) he was
eligible for training; (4) a non-member of the protected class
was treated more favorably. See Bethea, 1993 U.S. Dist. LEXIS
940, at *21; see also Malacara v. City of Madison,
224 F.3d 727, 729 (7th Cir. 2002).
If Plaintiff satisfies this initial burden, the burden of going
forward shifts to the employer "to produce a `legitimate,
non-discriminatory reason for the employee's rejection.'"
Young, 47 Fed. Appx. at 161 (quoting Texas Dep't of Comm.
Affairs v. Burdine, 450 U.S. 248, 252-54 (1981)). This is done
by "`introducing evidence which, taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the
unfavorable employment decision.'" Id. (quoting Fuentes v.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994)).
Once the defendant satisfies this "relatively light burden,"
the plaintiff "may survive summary judgment" by "produc[ing]
sufficient evidence to raise a genuine issue of fact as to
whether the employer's proffered reasons were not its true
reasons for the challenged employment action." Sheridan v. E.I.
Dupont de Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996)
(citing Fuentes, 32 F.3d at 763). The plaintiff can accomplish
this by "pointing to some evidence, direct or circumstantial,
from which a factfinder could reasonably either (1) disbelieve
the [defendant's] articulated legitimate reasons; or (2) believe
that an invidious discriminatory reason was more likely than not a motivating or determinative
cause of the" defendant's action. Fuentes, 32 F.3d at 764. The
plaintiff cannot undermine the defendant's legitimate reasons by
simply showing that the defendant's "decision was wrong or
mistaken." Id. at 765. Instead, the plaintiff must show "such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the [defendant's] proffered legitimate reasons
for its action that a reasonable factfinder could rationally
find them `unworthy of credence.'" Id.
III. Tassy's Failure To Promote Claim
A. Tassy Has Not Set Forth A Prima Facie Case Of
Discrimination Based On A Failure To Promote
The Court first turns to the first prong of the McDonnell
Douglas burden-shifting analysis: whether Tassy set forth a
prima facie case of discrimination. Neither side disputes that
Tassy is a member of a protected class. In addition, the evidence
amply demonstrates that Tassy sought for, and was denied, a
promotion on five separate occasions.*fn10
Accordingly, Tassy must demonstrate that he was qualified for
the promotions at issue. See Cobb v. Phila. Gas Works,
118 Fed. Appx. 584, 587 (3d Cir. 2004). The Court evaluates a plaintiff's
qualifications for purposes of proving a prima facie case by
looking at objective standards. See Ezold v. Wolf, Block, Schorr
& Solis-Cohen, 983 F.3d 509, 523 (3d Cir. 1992); Weldon v.
Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990). From 1989 to
1998, Tassy applied for the positions of Generalist in the Femoral Knee Cell, Tibial
Cell, Knee Instrument Cell, and Cap-Cell. See LM Decl. Exh. Z.
In each case, Tassy's application was denied based on
inappropriate experience. See id. Tassy, however, does not
provide any objective evidence showing that he was qualified for
Furthermore, Tassy must demonstrate that non-members of his
class were treated more favorably regarding the promotions he
sought. See, e.g., Dorsey v. Pittsburgh Assoc.,
90 Fed. Appx. 636, 639 (3d Cir. 2004). Tassy testified at his deposition that
three employees received the position of "Machinist," to which he
applied. See LM Decl. Exh D 104:12-105:11. Tassy, however,
provides no evidence substantiating the claim that these
employees were promoted to "Machinist" or even that the position
of "Machinist" exists at the company. In fact, Stryker provides
unrefuted evidence that all three employees held the same
position as Tassy namely, Generalist. See Varon Decl. ¶
16.*fn11 Further, Stryker provides evidence that one of the
employees Tassy claims was promoted ahead of him was actually
African-American. See LM Decl. Exh BB. 4:6-10. Therefore, Tassy
has not shown that other employees outside his protected class
received the position to which he applied.
Accordingly, since Tassy has not satisfied the second and
fourth elements of its prima facie case, Tassy has not satisfied
the first prong of the McDonnell Douglas framework regarding his failure to promote claim.
B. Stryker Has Set Forth A Legitimate Non-discriminatory
Reason For Tassy's Non-Advancement.
Regardless, even if Tassy had set forth a prima facie case of
discrimination based on a failure to promote, Stryker has
sufficiently set forth a legitimate non-discriminatory reason for
Tassy's non-advancement. As set forth in the background
discussion, the record is replete with evidence of Tassy's poor
performance at Stryker. From 1989 until his termination, Tassy
received performance reviews stating that various aspects of his
performance were below company standards. Furthermore, Tassy
received repeated warnings regarding his quality and
professionalism. Finally, Tassy was suspended on more than one
occasion for quality errors, and was ultimately terminated for
violating Stryker's standards of sterility, which are quite
important for a producer of devices to be implanted into human
beings. Furthermore, Tassy does not dispute that each instance of
poor performance occurred. This is more than enough evidence
needed to establish a legitimate non-discriminatory reason for
C. Tassy Fails To Set Forth A Factual Basis From Which A
Rational Jury Could Reasonably Infer That Stryker's Proffered
Reason For Not Promoting Tassy Is Pretextual
Tassy also offers no evidence showing that Stryker's reason for
his non-advancement namely, his poor performance was
pretextual and that the real reason was based on racial
discrimination. Tassy only provides evidence that there were
relatively few Black employees at Stryker, that a Haitian
co-worker told him that he would never advance because he was
Black, that a Hispanic co-worker told him that he could not
operate a plastics machine because he was Black, and that a white
co-worker told him that he would remain a utility co-worker
forever because he was black. See Pl. Opp. at 1, 3 and 6. These
statements, however, were not made by Tassy's superiors and do
not raise an issue of fact regarding whether Tassy was denied a
promotion based on his race. Ezold v. Wolf, Block, Schorr, and
Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992) ("Stray remarks by
non-decisionmakers or by decisionmakers unrelated to the decision
process are rarely given great weight, particularly if they were
made temporally remote from the date of decision."). Therefore,
these statements will not be given great weight.
In sum, neither Tassy's prima facie case nor any of the
"evidence" offered by Tassy suggest that Stryker's proffered
explanation for Tassy's non-advancement was pretextual. The Court
simply cannot hold that a rational jury possibly could conclude,
based only on Tassy's unsupported assertions regarding his
non-advancement, that Stryker's proffered reason for failing to
promote Tassy is so weak, implausible, inconsistent, incoherent,
or contradictory that it is unworthy of credence. See Fuentes,
32 F.3d at 764. Nor can the Court hold that this rational jury
could conclude that the proffered reason was so plainly wrong
that it could not have been the real reason. Having failed to
meet his burden, summary judgment will be granted in favor of
Stryker as to Tassy's employment discrimination claim regarding a
failure to promote.
III. Tassy's Failure To Train Claim
A. Tassy Has Not Set Forth a Prima Facie Case Of
Discrimination Based On A Failure To Train
Again, it is undisputed that Tassy is a member of a protected
class. It is also undisputed that Stryker provided training to
its employees. Therefore, the determination of whether Tassy set
forth a prima facie case of discrimination turns on whether he
was eligible for the training sought and whether non-members of
his class were treated more favorably. Regarding whether Tassy was eligible for the training he
sought, Tassy provides no evidence that such was the case.
Nowhere in his submissions to this court does he specify the
training he was denied, or that others received, nor does he
specify that he was eligible to receive such training.*fn12
Allegations alone are not enough to set forth a prima facie case.
See Taylor v. Cherry Hill Bd. of Educ., 85 Fed. Appx. 836, 839
(3d Cir. 2004) ("In the context of discrimination claims, we have
explained that conclusory allegations of discrimination, in the
absence of particulars, are insufficient to defeat summary
Furthermore, Tassy has not shown that other employees outside
his protected class received the training he desired.
Specifically, Tassy claims that four employees (Messrs. Hup,
DeVries, Chojnacki and Compres) received the training he desired.
See LM Decl. Exh D, 124:7; Pl. Opp. at 2. Tassy, though, has
not provided any evidence substantiating this claim. Furthermore,
the undisputed evidence offered by Stryker shows that Tassy, in
fact, received the same training with at least one of these
individuals, who is Caucasian. Compare LM Decl. Exh. Y, with
Deposition Transcript of Anthony J. Hup at 13:24-18:26, 23:13-19.
Furthermore, Tassy does not dispute that Stryker did not
introduce Core Skills Training until 1994 the very same year
in which Tassy first participated in the training. Varon Decl. ¶¶
Accordingly, this Court cannot find that Tassy satisfied his
burden of setting forth a prima facie case of discrimination based on a failure to train.
Accordingly, having failed to meet his burden, summary judgment
will be granted in favor of Stryker as to Tassy's employment
discrimination claim regarding a failure to train.*fn13
In light of the foregoing reasons, Defendant's motion for
summary judgment is GRANTED and Plaintiff's Complaint is
DISMISSED WITH PREJUDICE in its entirety.
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