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Miles E. Jackson v. Gannett Co.

August 3, 2011

MILES E. JACKSON PLAINTIFF,
v.
GANNETT CO., INC. D/B/A THE DAILY JOURNAL,
DEFENDANTS.



The opinion of the court was delivered by: Hon. Joseph H. Rodriguez

NOT FOR PUBLICATION

OPINION

RODRIGUEZ, Senior District Judge:

This is an employment discrimination suit filed by Miles E. Jackson ("Plaintiff"), against his former employer, The Daily Journal ("Defendant"). Plaintiff asserts that he was discriminated against and ultimately terminated based on his disability in violation of the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. § 10:5-1 et seq., and the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. Defendant moves for summary judgment pursuant to Fed. R. Civ. P. 56 to dismiss all claims. Oral argument was heard on the motion on July 14, 2011. For the reasons expressed on the record that day, as well as those set forth below, Defendant's Motion for Summary Judgment [Dkt. No. 23] will be granted in part and denied in part.

I. Background

Defendant is a South Jersey newspaper based in Vineland, New Jersey. Plaintiff worked as a Metro Reporter for Defendant from January of 1999 until he was terminated in May of 2008. At the time Plaintiff was hired, he advised Defendant in writing that he was physically disabled due to injuries sustained in a catastrophic motor vehicle accident in 1988. As a result of the accident, Plaintiff suffered from limited motion and feeling in his left arm, legs, chronic back pain, development of Hepatitis C due to numerous blood transfusions, and a pituitary disorder requiring the daily use of narcotic medications. Despite his physical limitations, Plaintiff performed his duties as a Reporter without incident during the first five years of employment with the Daily Journal.

Throughout his career, Plaintiff's medical condition necessitated that he periodically take FMLA leave, and he did so without reproach from Defendant; taking 11 weeks of FMLA leave in 2000, 3 weeks in 2003, and 8 weeks in 2004. (Pl. Ex. A., Jackson Aff., ¶¶ 19-20.) Plaintiff's employee evaluation forms indicate that despite his physical limitations and constant pain, he was a tenacious reporter who shunned the thought of the typical nine-to-five work schedule. (Id. at ¶ 7.) However, Plaintiff claims that in 2004 the seeds of resentment and intolerance began to grow in his supervisors and he was increasingly subjected to discrimination based on his disabilities.

In 2004, Plaintiff's supervisor, Metro Editor Jason Alt ("Alt") assigned Plaintiff to the only general beat, including in part, the "Court" beat, which required a significant amount of driving. Around the same time Plaintiff was prescribed a non-narcotic pain medication, Neurontin, in an attempt to wean him off narcotic medications. After Alt began pointing out mistakes in Plaintiff's work product and placed him on a Performance Improvement Plan, Plaintiff informed Alt that his physical limitations and the medications he was taking prevented him from performing his beat in a satisfactory manner. (Id. at ¶ 11.) Plaintiff requested to be reassigned to a less demanding beat which required less driving, however, Alt refused. (Id. at ¶¶ 12-13.) According to Plaintiff, Alt then began to increase Plaintiff's workload by requiring him to cover last minute stories and assigning him to simultaneous stories that required significant travel that made it impossible to complete his stories within the standard work day. (Id. at ¶ 17.)

In 2006, Plaintiff expressed in his Employee Self-Evaluation that his beat was taking a toll on him: "As the only reporter with so many different beats, I feel I'm spread thin. If this continues, I must make hard decisions and inform my supervisors of what I'm capable of doing." (Pl. Ex. G, 2006 Self Evaluation). From August 31, 2006 through October 5, 2006, Plaintiff needed to take five weeks of FMLA leave to manage his disability. (Id. ¶ 19.) In 2007, Plaintiff once again asked to be reassigned to a different beat and his request was denied by Alt. Tension escalated in the news room as Plaintiff noticed that his work load appeared to continue to grow while other reporters, such as Tim Zatzariny and James Quaranta, were assigned to beats that never required excessive hours, seemingly because they were favored by Alt. (Id. at ¶ 28.)

In July of 2007, Plaintiff was given a last minute assignment by Assistant Metro Editor, Thomas Frasier ("Frasier") at 4:30 p.m. (Id. at ¶ 34.) Plaintiff objected to the last minute assignment and indicated that he had a previously scheduled religious meeting to attend that evening. (Id.) Frasier directed Plaintiff into a back room and began to yell at him. The altercation escalated and Plaintiff alleges that Frasier cursed at him and grabbed his wrist when he attempted to leave the room. Although Plaintiff stayed past 5:00 p.m to finish the assignment, he submitted an informal letter to Defendant, detailing the events that transpired and expressing concern that he would be subjected to retribution from Frasier as a result of the altercation. (Pl. Ex. T.)

Shortly after the incident with Frasier, in August of 2007, Plaintiff submitted a note from his doctor that provided: "Because of his medical problems he should not work more than 40 hours a week and no more than 8 hours any day." (Def. Ex. J., August 30, 2007 Note of Dr. Haag). In a seeming attempt to comply with the mandates of the note, Defendant directed Plaintiff to tell his supervisors if he was approaching the hourly limitation set by his doctor and was required to log his hours on a daily basis so that his supervisors could track his progress. (Pl. Ex. S, November 2, 2007 Memo from Charlie Nutt to Plaintiff.) During this time period, Alt continued to pile work on Plaintiff, such that he was unable to accomplish the ever increasing number of tasks within the eight-hour time limitation. (Jackson Aff., ¶¶ 36-38.) In addition, Alt heightened his scrutiny of Plaintiff's work product and placed him on a Performance Improvement Plan in January of 2008. (Id. at ¶ 39; Def. Ex. I, January 21, 2008 Performance Improvement Plan.)

On February 18, 2008, Plaintiff submitted a request for FMLA leave due to: "mental breakdown - job related stress." (Def. Ex. E.) Plaintiff was out of work for twelve weeks on FMLA leave until he attempted to return to work on May 5, 2008 with a note from his doctor, requesting that Defendant "please limit his work schedule to a maximum of 8 hours a day and 40 hours a week." (Pl. Ex. B, May 5, 2008 Medical Note of Dr. Haag). Defendant required that Plaintiff's note specifically clear him to drive. Plaintiff then produced a second physician's note, stating: "This is to advise you that I have released the above named to drive and to return to work on a full time basis within the medical doctor's restrictions of eight hour days and forty hour weeks." (Pl. Ex. B, May 7, 2008 Note of Dr. Crouse.) Plaintiff was informed by Defendant that he was required to return to work with no restrictions on his job duties and, when Plaintiff failed to do so, he was terminated. Defendant contends that the previous efforts to limit Plaintiff's hours to no more than eight hours a day proved to be an "unworkable accommodation" for his position as a Reporter at the Daily Journal. (Alt Tr., 75:10-16.) According to Plaintiff, the true reason Defendant took such a hardline stance on Plaintiff's hour restriction was because Defendant no longer wished to "repeatedly accommodate" Plaintiff's FMLA leave requests.

Plaintiff filed a five-count Complaint in New Jersey Superior Court, Cumberland County, on November 28, 2008. Plaintiff alleges that he was subjected to a hostile work environment because of his disability and retaliated against when he complained of harassing behavior. Plaintiff also alleges that he was denied a reasonable accommodation and ultimately terminated because of Defendant's allegedly unreasonable position that Plaintiff, as a reporter, must be available to work greater than eight hours a day. Plaintiff further alleges that Defendant interfered with his right to take FMLA leave and terminated him in retaliation for exercising his FMLA rights in 2008. Lastly, Plaintiff asserts that he is entitled to punitive damages because Defendant engaged in discriminatory practices with malice or reckless indifference to his rights under the NJLAD and FMLA. Defendant timely removed the matter to this Court on December 31, 2008 and now seeks summary judgment in its favor, dismissing all claims.

II. Summary Judgment Standard

"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). The Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56 (c)(1)(A).

An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.;

Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that "an adverse party cannot produce admissible evidence to support the [alleged dispute of] fact." Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).

In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determinations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

In employment discrimination cases, the burden of persuasion on summary judgment remains unalterably with the employer as movant. The employer must persuade the court that even if all of the inferences which could reasonably be drawn from the evidentiary materials of record were viewed in the light most favorable to the plaintiff, no reasonable jury could find in the plaintiff's favor. Doe v. C.A.R.S., 527 F.3d 358, 362 (3d Cir. 2008).

III. Discussion

A. The New Jersey Law Against Discrimination Claims

Plaintiff alleges four counts of discrimination under the NJLAD, which prohibits "any unlawful discrimination against any person because such person is or has been at any time disabled or any unlawful employment practice against such person, unless the nature and extent of the disability reasonably precludes the performance of the particular employment." N.J. Stat. Ann. § 10:5-4.1. Analysis of claims made pursuant to the NJLAD generally follow the analysis used in Title VII claims, Schurr v. Resorts Int'l Hotel, Inc., 196 F.3d 486, 498 (3d Cir. 1999), and New Jersey courts employ the three-step burden shifting standard articulated in McDonnell Dougas Corp. v. Green, 411 U.S. 792, 801-04 (1973). See Zive v. Stanley Roberts, Inc. 867 A.2d 1133, 1139 (N.J. 2005). First, the plaintiff bears the initial burden of establishing a prima facie case of unlawful discrimination. Id. If the plaintiff is successful in establishing a prima facie case, the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action. Id. Where defendant satisfies this burden, the plaintiff must prove, by a preponderance of the evidence, that the defendant's proffered reason was merely a pretext for discrimination. Id. at 1140.

1. Hostile Work Environment

Count One alleges that Plaintiff was subjected to a hostile work environment due to his various encounters with supervisors from September 2005 through January of 2008. (Compl., ¶¶ 29-32.)

To state a prima facie hostile work environment claim under the NJLAD, a plaintiff must show that the complained of conduct: "(1) would not have occurred but for the employee's protected status, and was (2) severe or pervasive enough to make a

(3) reasonable person believe that (4) the conditions of employment have been altered and the working environment is hostile or abusive." Shepherd v. Hunterdon Dev. Ctr., 803 A.2d 445, 453 (N.J. 1993) (citing Lehmann v. Toys 'R' Us., Inc., 626 A.2d 445, 453 (N.J. 1993)). A viable hostile environment claim stems from extremely insensitive conduct against the protected person so egregious that it alters the conditions of employment and destroys the person's equal opportunity in the workplace. See DeAngelis v. El Paso Municipal Police Officers Ass'n, 51 F.3d 591 (5th Cir.), cert. denied 516 U.S. 974 (1995).

With regard to hostile work environment claims, the New Jersey Supreme Court adopted the "severe or pervasive" test as part of its comprehensive standard, which "conforms to the standard for establishing workplace racial or gender harassment under federal Title VII law." Taylor v. Metzger, 706 A.2d 685, 689 (N.J. 1998) (citations omitted). That is, in order for harassment to be cognizable, it must be "'sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'" West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir. 1999)(quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).

Courts must consider the frequency or severity of the conduct, whether the conduct was physically threatening or humiliating, or merely an offensive utterance and whether the conduct unreasonably interfered with plaintiff's work performance. See Godfrey v. Princeton Theological Seminary, 952 A.2d 1034, 1045 (N.J. 2008)). However, the focus must be on the harassing conduct itself, "not its effect on the plaintiff or the work environment; that is because neither a plaintiff's subjective response to the harassment nor a defendant's subjective intent when perpetrating the harassment is controlling of whether an actionable hostile environment claim exists." Cutler v. Dorn, 955 A.2d 917, 924 (N.J. 2008) (internal citations and quotation marks omitted). Thus, plaintiffs must realize that "not everything that makes an employee unhappy" forms the basis for an actionable hostile work environment claim. Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997) (citations omitted).

Plaintiff supports his hostile work claim generally with vague references to disparaging comments, unfounded criticism and a sense of hostility he received from his supervisors. Primarily, Plaintiff relies on the physical altercation with Frasier, the piling up of assignments by Alt and Frasier, and the scrutiny and perceived nit-picking of his work product. However, Plaintiff has failed to establish that any of this allegedly hostile behavior was causally related to his disability.

First, Plaintiff points to the physical altercation with Frasier occurring in June of 2007 as proof of a hostile environment. However, the August 23, 2007 letter Plaintiff submitted to Defendant regarding the altercation does not evidence concern that Frasier's behavior occurred because of Plaintiff's disability. Rather, the letter repeatedly begrudges Frasier's failure to accommodate ...


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