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Lavotte Saunders v. Apothaker Associates


April 17, 2012


The opinion of the court was delivered by: Honorable Joseph E. Irenas


IRENAS , Senior District Judge:

In this matter, Plaintiff alleges discrimination based on race and religion, which resulted in Plaintiff's wrongful termination. Presently before the Court are Defendants' Motion for Summary Judgment and Plaintiff's Motion to Strike Defendants' Expert Report. (Dkt. Nos. 36, 43)


In the spring of 2010, Lavotte Saunders, a Muslim African American male, applied for a position with Apothaker & Associates, Inc. ("Apothaker"). (Pl.'s Facts at ¶¶ 1, 3) *fn1

Saunders was selected to interview twice for an open debt collector position. ( Id. at ¶ 1) *fn2 At the interview, Saunders wore tradition Muslim attire, which consisted of a one-piece garment called a "thobe" and a headpiece called a "Keffiyeh". ( Id. at ¶ 19)

About a week later, Saunders received an offer of employment. ( Id. at ¶ 7) Both Saunders' application and offer of employment notified Saunders that Apothaker would perform a criminal background check. ( Id. Exs. L, S) Saunders' continued employment would be contingent on the check. ( Id.

On May 19, 2010, Saunders employment commenced, however, Apothaker had not yet completed the criminal background check. ( Id. at ¶ 10) On May 20, 2010, Saunders met David Apothaker while on lunch break. ( Id. at ¶ 16) During this conversation, Saunders observed David Apothaker to appear visibly taken aback by Saunders' appearance because Saunders was the only employee at Apothaker to ever wear traditional Muslim attire. ( Id. at ¶ 18)

Shortly after this exchange, Lynn-Anderson Downs, a human resources director, alerted Saunders that "Mr. Apothaker just ran a criminal background search on you. Unfortunately, we have to terminate you." ( Id. at ¶ 23) The criminal background search revealed that Saunders had been convicted of felony retail theft approximately five years previously. (Def.'s Facts at ¶ 41) Moreover, Saunders had not paid any of the $12,000 outstanding court ordered restitution. ( Id. at ¶ 44) Saunders lost his job after less than two days of working at Apothaker.

Several weeks later, Saunders learned that several Apothaker employees had criminal records - including a felony conviction -but had not been fired. (Pl.'s Facts at ¶¶ 31-33) Apothaker maintains that there was no formal hiring policy, but instituted a policy of performing background checks for all new hires within the past few years. ( Id. at ¶¶ 61-63)

On June 22, 2010, Plaintiff Filed the Complaint. On January 30, 2012, Defendants filed the Motion for Summary Judgment and on March 8, 2012, Plaintiff moved to strike defendant's expert report. *fn3


"[S]ummary judgment is proper '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.'" Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines , 794 F.2d 860, 864 (3d Cir. 1986).

"'With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by 'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas , 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex , 477 U.S. at 323). The role of the Court is not "to weigh the evidence and determine 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). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id . at 249.


Plaintiff initially brought claims for religion and race discrimination under Title VII and the New Jersey Law Against Discrimination ("LAD"). However, Plaintiff has abandoned his race discrimination claims. ( See Pl.'s Br. 4, n.1)

Claims of disparate treatment due to religious discrimination under Title VII are subject to the familiar McDonnell burden shifting analysis. *fn4 See McDonnell Douglas Corp.

v. Green , 411 U.S. 792 (1973). First, Plaintiff must state a prima facie case. Next, the burden shifts to Defendants to "articulate some legitimate, non-discriminatory reason for the employee's termination." Id. at 802. If Defendants succeed, Plaintiff may still avoid summary judgment by offering evidence that Defendants' proffered reason was merely a pretext for the termination. See Sarullo v. U.S. Postal Service , 352 F.3d 789, 797 (3d Cir. 2003).

To state a prima facie case, Plaintiff must demonstrate that he (1) is a member of a protected class, (2) was qualified for the position held, (3) suffered an adverse employment action despite being qualified, and (4) under circumstances that give rise to the inference of discrimination, such as non-class members being treated more favorably. See id. ; Abramson v. William Paterson College of N.J. , 260 F.3d 265, 281-82 (3d Cir. 2001).

Defendant does not dispute the first and third elements. Saunders, a Muslim, was part of a protected class, and Apothaker terminated Saunders' employment.

Defendant does argue, however, that Saunders cannot establish the second element because he was not qualified for the position. Under normal circumstances, hiring a candidate with full knowledge of his or her background and experience is prima facie evidence that the employee was qualified for the position sought. See Hugh v. Butler County Family YMCA , 418 F.3d 265, 268 (3d Cir. 2005). However, "this conclusion would, of course, be different if [Plaintiff] had not disclosed information regarding her qualifications or if she had misrepresented her qualifications." Id.

Here, Defendant hired Plaintiff, and Plaintiff commenced working, contingent on a subsequent criminal background check. ( See Pl.'s Facts, Exs. L, S) Although Plaintiff allegedly disclosed that he had been convicted of a misdemeanor, ( see Def.'s Facts ¶ 15), upon completing the background check, Apothaker's management discovered that Saunders had, in fact, been convicted of felony retail theft and failed to pay the court ordered $12,000 restitution. In the debt collection business, Saunders' criminal history and failure to repay restitution raised serious concerns with management for obvious reasons.

In response, Saunders does not argue that his felony conviction is irrelevant to the hiring process, but that other non-Muslim employees were hired despite criminal records. *fn5 While this argument may be pertinent in determining whether non-class members were treated more favorably than Saunders, the argument does not resolve the question of whether Saunders was qualified in the first place. *fn6 Moreover, Saunders' conviction and failure to pay restitution is arguably more severe than other Apothaker employees' records, which renders the comparison inapt. *fn7

Plaintiff has not carried his burden with respect to the second element.

Although this Court doubts that Saunders has established a prima facie case, even if this Court were to assume that he had,

Saunders' conviction and failure to repay restitution certainly qualifies as a legitimate non-discriminatory reason for Saunders' termination. Saunders has been unable to rebut this evidence with a showing of pretext. *fn8 Accordingly, Defendants' Motion for Summary Judgment will be granted.


For the reasons set forth above, Defendants' Motion for Summary Judgment will be granted. Plaintiff's Motion to Strike Defendants' Expert Report will be dismissed as moot.


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