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Salim A. Muhammad v. Day & Zimmermann Nps

July 22, 2011


The opinion of the court was delivered by: Sheridan, U.S.D.J.

Not For Publication


Plaintiff Salim A. Muhammad ("Plaintiff") was discharged by Day & Zimmermann NPS, Inc. (D&Z) in April 2007. Plaintiff, who is African-American, brought suit for discriminatory discharge and retaliation under the Civil Rights Act of 1866, 42 U.S.C. §1981 et seq. (§1981) and the New Jersey Law Against Discrimination (NJLAD). This matter comes before the Court on two motions for summary judgment, one submitted by D&Z and one submitted by the International Brotherhood of Boilermakers, Local Lodge 28 (Local 28). Both motions seek dismissal of the Plaintiff's complaint in its entirety. For the reasons set forth below, the motions are granted.


Muhammad is a boilermaker who travels throughout the country in pursuit of work. He receives work by contacting the union in a particular territory to request employment.

D&Z provides contract construction and repair services to third-party clients. It does so by utilizing temporary union laborers for its projects. In 2007, D&Z was awarded a contract to perform work at the Hudson Generating Station (hereinafter "Hudson Project"), a power plant operated by Public Service Electric and Gas Company (PSE&G). The work entailed removing metal tubing from inside of old condensers and replacing it with new tubing.

In response to the contract, the D&Z project manager, Ken Letsom, contacted a business manager at Local 28 to secure workers for the Hudson Project. Local 28 then provided workers for the project, including Plaintiff. Plaintiff's employment on the project lasted from March 27, 2007 until the morning of April 10, 2007. Another worker, Joseph Stephenson, who is caucasian, also began work with D&Z at the Hudson Project on March 27, 2007. Both Stephenson and Plaintiff were assigned to work the night shift. On their first day of work, they received orientation on the rules and regulations particular to the project.

In early April 2007, Plaintiff struck his knee while working on the job. He continued to work, but the knee swelled overnight and he was examined by a doctor the next day. Plaintiff then informed his foreman, Steve Pocci, of the injury. Pocci was upset and questioned him about why he did not report the injury earlier. Plaintiff responded by saying, "listen, tone it down sir. I'm a grown man now. We don't want no fisticuffs." Pocci then informed Letsom, and Letsom also admonished Plaintiff for not reporting the injury immediately. Pursuant to D&Z policy, Plaintiff was taken to an approved doctor and was placed on light duty work.

Also in early April 2007, Pocci, who is caucasian, allegedly harassed Plaintiff by (1) disrespectfully pointing his finger in Plaintiff's face two or three times, (2) by poking Plaintiff in the back and telling him to get off the phone in the work zone, (3) by complaining about Plaintiff leaving the break trailer later than the other workers, (4) and by remarking that Plaintiff worked too slowly on some tasks. After Pocci poked Plaintiff in the back, Plaintiff met with D&Z management and the Local 28 steward, Paul Tsakonas, to complain about Pocci's alleged harassment. Pocci was the only employee that Plaintiff complained about at the Hudson Project.

On April 10, 2007, a "safety stand down" required the crews to stop working and remove debris from the work area. In preparation for removing the debris, a head count was performed and Stephenson and Plaintiff were found to be missing. D&Z management began searching for them. Plaintiff and Stephenson were found outside the PSE&G restroom an hour later. The PSE&G restroom was located outside of the work area and was allegedly off-limits for D&Z employees. After an angry exchange of words between Plaintiff and the general foreman, Joe Coe, both Plaintiff and Stephenson were terminated. Thereafter, project manager Letsom wrote in the log book that they had been terminated for being out of the work area for a time greater than forty-five minutes.

Plaintiff maintains that he and Stephenson were not "missing" for forty-five minutes; they were only standing where a supervisor had directed them to wait for work that needed to be performed. He also alleges that they went to use the restroom only after they were unable to find a supervisor to ask permission. Finally, Plaintiff maintains that he was never expressly told that he could not use the PSE&G bathroom. Stephenson maintains that they were terminated over a "miscommunication."

After the termination, Plaintiff left the site and Stephenson went into a work trailer. Stephenson allegedly then heard a "superintendent" who is unknown to him say: "The n***er has got to go. He has been nothing but trouble." Stephenson identified the speaker as over fifty-eight years old, with grey hair. No D&Z employee fits that exact description. Plaintiff maintains that the speaker was Dan Woods, who was employed by D&Z as personnel coordinator on the project. Plaintiff also maintains that Woods was the ultimate decision-maker in D&Z's decision to terminate him. Stephenson also reports that another unidentified individual mentioned briefly that D&Z would like to rehire Stephenson in a few days because he was a good employee. Stephenson alleges that the unidentified "superintendent" dismissed that idea in favor of permanent termination. Stephenson recounted these comments to Plaintiff several days later.

Following his termination, Plaintiff filed a grievance with Local 28 contesting his termination as unjust. After an investigation, Local 28 determined that the terminations of Plaintiff and Stephenson were appropriate. On April 9, 2009, Plaintiff brought claims against Defendants for discriminatory discharge and retaliation under the NJLAD and §1981. Defendants now come before the Court seeking dismissal by way of summary judgment.


A court shall grant summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure "if the pleading, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c). An issue is genuine if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Panda Allia v. Target Corp., 2010 US. Dist. LEXIS 25337, at *3, (D.N.J. 2010). A fact is material if, "under the governing substantive law, a dispute about the fact might affect the outcome of the suit." Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any ...

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