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Almodovar v. Freeman Decorating Co.

March 16, 2009

RE: ALMODOVAR
v.
FREEMAN DECORATING COMPANY, ET AL.



The opinion of the court was delivered by: William J. Martini Judge

LETTER OPINION

Dear Counsel:

This matter comes before the Court on the motion for summary judgment filed by Defendants Freeman Decorating Company and Freeman Decorating Services, Inc. (collectively "Defendant Freeman"). There was no oral argument. Fed. R. Civ. P. 78. For the reasons stated below, Defendants' motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND*fn1

This is an employment discrimination case, brought by a terminated worker, who alleges that his former employer fired him both because of his national origin and in retaliation for filing a complaint with the Equal Employment Opportunity Commission ("EEOC")

Defendant Freeman is a Dallas-based corporation that specializes in the design and assembly of displays for trade shows and conventions. (Declaration of William A. Kuehnle ("Kuehnle Decl.") ¶ 2.) Freeman has a warehouse facility in Kearny, New Jersey. (Kuehnle Decl. ¶ 2.)

Plaintiff Vincent Almodovar, a resident of East Stroudsburg, Pennsylvania, identifies himself as Puerto Rican. Compl. ¶¶ 1, 6. Almodovar was hired as a truck driver/freight handler at the Kearny facility on August 23, 1989. (Pl.'s Counterstatement of Material Facts ("Pl.'s SMF") ¶¶ 12, 40.) After nearly fifteen years of employment, Plaintiff Almodovar was terminated by Defendant Freeman when he arrived at work on February 3, 2004. (Pl's SMF ¶ 40.)

During his tenure at Freeman, Plaintiff Almodovar received both written and verbal discipline for various infractions of company rules. (Pl.'s SMF ¶¶ 21, 35, 36; Defs.'Statement of Undisputed Material Facts ("Defs.'SMF") ¶¶ 6-9.) These infractions included theft of property (i.e. several feet of twine), smoking in a non-smoking area, and sleeping on the job. (Pl.'s SMF ¶ 21; Defs.' SMF ¶¶ 6-7.) Most frequently, however, Almodovar was cited for attendance issues, including arriving late and leaving early. (Pl.'s Mem. in Opp'n to Defs.' Mot. for Summ. J. ("Pl.'s Br.") 5-7; Defs. SMF ¶ 6.)

While employed by Defendant Freeman, Almodovar was a member of the Teamsters Local 807. (Pl.'s SMF ¶ 12; Defs.' SMF ¶ 4.) The Collective Bargaining Agreement entered into by Local 807 and Freeman sets out a "progressive disciplinary policy" for Freeman employees. Under this policy, Freeman supervisors were required to deliver several verbal warnings regarding disciplinary infractions before the issuance of a written disciplinary notice. (Declaration of Joseph J. Ranni ("Ranni Decl."), Ex. 13.) In making a termination decision, Freeman was permitted to consider only those written disciplinary notices issued within the preceding nine months. (Pl.'s SMF ¶ 29; Defs.' SMF ¶ 3.) Further, this progressive disciplinary policy required that three separate "Employee Warning Notices" be issued within a nine-month period*fn2 to justify termination. (Pl.'s Br. 5; Pl.'s SMF ¶ 29.)

During the nine months prior to his termination, Plaintiff Almodovar received one "Employee Warning Notice" letter on November 3, 2003. (Declaration of Eric A. Savage ("Savage Decl.") Ex. Q.) In addition, during this period, Almodovar received two other written disciplinary warnings, without the "Employee Warning Notice" caption, on July 2, 2003 and January 24, 2004. (Savage Decl. Exs. P, R.)

On November 25, 2003 -- just over two months prior to his termination -- Plaintiff Almodovar filed a complaint with EEOC, alleging discrimination with respect to his national origin and retaliation. (Savage Decl. Ex. S.) After his firing, Almodovar filed a second EEOC charge, again alleging national origin discrimination and retaliation. (Savage Decl. Ex. T.)

After receipt of a "Right to Sue" notice from the EEOC, Plaintiff Almodovar filed a complaint in this Court on August 10, 2006. (Pl.'s SMF ¶ 9.) Defendants then filed the instant motion for summary judgment after the close of fact discovery.

II. DISCUSSION

Plaintiff Almodovar brings suit, alleging discriminatory discharge and retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. ยง 2000e et seq., and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. Specifically, Almodovar claims that he was discharged by Defendant Freeman: (1) because he is Puerto Rican and (2) in retaliation ...


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