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Treusch v. Center Square Supermarket, LLC

United States District Court, D. New Jersey

January 31, 2013

Thomas TREUSCH, Plaintiff,
CENTER SQUARE SUPERMARKET, LLC, and United Foods & Commercial Workers Union, Local 152, Defendants.

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George R. Szymanski, Esq., Law Offices of George R. Szymanski, Laurel Springs, NJ, for Plaintiff Thomas Treusch.

Thomas J. Bradley, Esq., McBreen & Kopko, Philadelphia, PA, for Defendant Center Square Supermarket, LLC.

Steven J. Bushinsky, Esq., O'Brien, Belland & Bushinsky, LLC, Cherry Hill, NJ,

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for Defendant United Foods & Commercial Workers Union, Local 152.


SIMANDLE, Chief Judge.


This matter is before the Court on Defendant United Foods & Commercial Workers Union, Local 152's (" Local 152" ) motion for summary judgment [Docket Item 23] and Defendant Center Square Supermarket, LLC's (" Center Square" or " ShopRite" ) motion for summary judgment [Docket Item 28]. Plaintiff Thomas Treusch (" Plaintiff" or " Mr. Treusch" ) has filed opposition to both motions.

The instant action arises out of the Plaintiff's discharge from employment by Defendant Center Square. The Plaintiff maintains he was falsely accused of sexual harassment and thereby wrongfully terminated. Specifically, the Plaintiff argues that his gender was a significant contributing factor to the decision to terminate him. The Plaintiff also maintains that Local 152 failed to adequately represent him and arbitrate his grievance. Consequently, the Plaintiff filed this suit alleging breach of contract, breach of fiduciary duty and gender discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (" NJLAD" ), against the Defendants. The Defendants now move for summary judgment arguing that the Plaintiff's complaint for breach of contract and breach of fiduciary duty is time barred and that the Plaintiff has failed to adduce sufficient evidence to establish a prima facie case of reverse gender discrimination.

For the reasons discussed below, the court will grant both motions for summary judgment. The court finds that the Plaintiff's claims for breach of contract and breach of fiduciary duty arise under Section 301 of the National Labor Relations Act and are therefore subject to a six-month limitations period. Since the Plaintiff's complaint was filed more than six months after his final appeal to the Union was denied, his claims for breach of contract and breach of fiduciary duty against Center Square and the Union are time barred. As for the Plaintiff's NJLAD claim, the Plaintiff has not put forth sufficient evidence to establish his prima facie case for reverse gender discrimination against Center Square or Local 152 and therefore no rational jury could find that the Plaintiff was discriminated against in violation of the NJLAD.

Accordingly, the court will grant both motions for summary judgment and Plaintiff's complaint will be dismissed.


Plaintiff Thomas Treusch was employed by Center Square, also known as ShopRite, as a produce clerk from July 28, 2006 until his discharge on December 6, 2009 and was 53 years old at the time of his termination. (Center Square's Statement of Uncontested Facts ¶ 1.) Plaintiff was a member of Defendant Local 152 throughout his employment with Center Square. ( Id. at ¶ 3.) Local 152 had a Collective Bargaining Agreement (" CBA" ) with Center Square which provided, among other things, that union members could only be terminated upon a showing of " just cause." ( Id. at ¶ 4.)

The Plaintiff did not have an oral or written employment contract with Center Square. However, the Plaintiff received a New Associate Welcome Packet on June 17, 2006, prior to working for Center Square, which contained several store policies, including Center Square's policy for handling sexual harassment. (Pl.'s Ex. A.) The Plaintiff also signed an Acknowledgment form on June 17, 2006 which stated:

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I acknowledge that if I am employed by ShopRite, my employment will be " at will" which means that either myself or ShopRite may terminate my employment with or without cause at any time.
I understand that if I am employed by ShopRite, my employment will not be for any specified term and may be terminated by me or ShopRite for any lawful reason.
I understand that the above conditions cannot be altered or amended, except in writing.

(Center Square's Reply Ex. A, Acknowledgment at 1.)

During July 2009, Plaintiff was advised by two of Center Square's owners, Tom and Maria Bottino, that a female co-worker named Pattie Johnson had lodged a complaint of sexual harassment against him. ( Id. at ¶ 5.) Plaintiff categorically denied Pattie Johnson's allegations to the Bottinos. ( Id. at ¶ 5; Pl.'s Ex. B, Thomas Treusch Deposition taken January 18, 2012 (" Treusch Dep." ) at 25:12-26:23.) The Bottinos decided not to take any further action against the Plaintiff with regard to Johnson's complaint. However, Plaintiff was reminded by the Bottinos that Center Square had a policy against sexual harassment and he was warned that he should not engage in any illegal behavior. The Plaintiff was also cautioned by the Bottinos to stay away from Ms. Johnson and not to ask her out. (Treusch Dep. at 31:11-16.)

In August 2009, a fellow Center Square employee, Nick Schwegel, reported an incident involving the Plaintiff and a twenty-one year old female employee, Nicole Fach, to Human Resources Assistant, Lauren Wynne. (Pl.'s Ex. D, Deposition of Nicholas Schwegel taken June 20, 2012 (" Schwegel Dep." ) at 8:3-9:10.) Nick told Lauren Wynne that the Plaintiff made Nicole feel uncomfortable during her break by making inappropriate comments to her and grinning at her in a sexual manner. (Schwegel Dep. at 6:4-7:4.) Specifically, Schwegel, Nicole Fach and another Center Square employee, Deanna, were sitting outside at a picnic table during their lunch break discussing Nicole's recently acquired tattoos. The Plaintiff was sitting near the Plaintiff but was not included in the conversation, according to Schwegel. Nicole then showed Schwegel and Deanna her tattoos which were located on the small of her back by her hips. At this point, Schwegel testified that the Plaintiff " made a comment about her looking good and kind of grinned in a very sexual manner." (Schwegel Dep. at 6:8-10.)

In response to this comment, Schwegel testified that they ignored the Plaintiff and continued on with their conversation. Deanna made a comment about how her parents would kick her out of the house if she got another tattoo. Nicole made a similar comment that she would also be kicked out of the house for her tattoos. Then, according to Schwegel, the Plaintiff turned to Nicole and said, " If you ever got kicked out of your house, I would make room for you in my place any time." (Schwegel Dep. at 7:15-20.) Schwegel understood this comment to be the Plaintiff making a pass at Nicole. At that point, Nicole, Deanna and Schwegel left the picnic area and ended their break. On their way back into the store, Nicole made a comment to Schwegel that she felt uncomfortable. (Schwegel Dep. at 8:1-8.) Schwegel then decided to go to Lauren Wynne to report the incident because he felt the Plaintiff was serious in making a pass at Nicole and he did not want Nicole to feel uncomfortable in the workplace.

In particular, Schwegel testified that, " I wouldn't have taken it up if he said, ‘ Just

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kidding’ or Nicole didn't feel uncomfortable, but he didn't say, ‘ I was just kidding.’ He made the grin and it was a very serious statement to be making. It's not something you just say to a woman and then forget about it. And she felt very uncomfortable by the statement." (Schwegel Dep. at 10:15-21.)

In response to this situation, Lauren Wynne spoke with Nicole. Nicole indicated that she did not want Lauren to pursue the matter any further because she didn't want to get the Plaintiff into trouble and " felt like maybe she could handle the situation." (Pl.'s Ex. H, Deposition of Lauren Wynne taken June 20, 2012 (" Wynne Dep." ) at 4:16-25.)

The Plaintiff recalled the August 2009 incident in his deposition. The Plaintiff testified that Nicole was sitting at another table in the break room " commenting to a couple of other coworkers that she had gotten a couple of tattoos." (Treusch Dep. at 51:4-9.) Since the tattoos were not visible, the Plaintiff testified that Nicole stood up and pulled her top up in the back and lowered her jeans down in order to show the tattoos. (Treusch Dep. at 51:11-14.) The Plaintiff maintained that Nicole was showing everyone in the break room and that other people were making comments about how nice they looked. (Treusch Dep. at 51:17-18; 54:18-21.) The Plaintiff recalled that he may have said something about how the tattoos looked nice and he believed Nicole thanked him for the comment. (Treusch Dep. at 54:18-21; 56:3-5.)

However, the Plaintiff denied making any statement that Nicole could move in with him if her parents kicked her out. Specifically, Plaintiff testified that, " I never made a comment like that in my life." (Treusch Dep. at 56:1-2.) The Plaintiff also testified that Nicole never discussed that day with him after it occurred and that her behavior toward the him did not change in anyway after that day. (Treusch Dep. at 56:11-21.)

Later, on December 1, 2009, Nicole Fach filed a formal complaint of sexual harassment against the Plaintiff as a result of a second incident which occurred on November 20, 2009. Specifically, Nicole Fach complained that while she was in the store cleaning registers, Plaintiff approached her and made a comment about how she looked good in sweats and he liked her better this way. Then Nicole claimed Plaintiff grabbed her hand and kissed it. (Pl.'s Ex. C, Deposition of Nicole Fach taken June 20, 2012 (" Fach Dep." ), ex. Fach-1, December 1, 2009 Statement.) Nicole then testified that she pulled her hand back and said that her " hands were in a dirty bucket of water and that was disgusting." (Fach Dep. at 14:24-25.) This incident is also captured on videotape, and the Court has viewed the DVD evidence submitted by Plaintiff's counsel. (Pl.'s Ex. K.) The actual incident is largely obstructed from view by a row of lights which visually blocks most of the interaction between the Plaintiff and Fach. However, it is clear that the incident lasted no more than thirty seconds. The video shows Nicole Fach walking in the direction of the Plaintiff from another part of the store and ultimately stopping to talk to the Plaintiff. Shortly after Plaintiff kisses Fach's hand, the video shows Fach brusquely walking away from the Plaintiff and the Plaintiff following at a short distance behind her.

At the time of these incidents, Nicole Fach was twenty-one and Thomas Treusch was fifty-three. (Fach Dep. at 10:8-9; Treusch Dep. at 8:2-4.)

As a result of Nicole Fach's December complaint, Center Square investigated the incident and eventually brought the Plaintiff in for a meeting with Tom Bottino, an

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owner of Center Square, Frank Bottino, the store manager, and Diane Trubiano, the shop steward. (Treusch Dep. at 39:16-22.) The Plaintiff did not deny kissing Nicole's hand and admitted to telling Nicole that she " did not look a mess" in her sweats. (Treusch Dep. at 41:4-11.) The Plaintiff explained that Nicole had told him she was having a bad day and that he was " just trying to reassure her to make her feel comfortable about herself and to show her to have a nice day" which is why he kissed her hand. (Treusch Dep. at 41:7-11.)

Since this was the second complaint lodged against the Plaintiff for sexual harassment, Tom Bottino told the Plaintiff that " they had no other recourse but to terminate him." (Treusch Dep. at 42:24-43:1.) Frank Bottino testified in his deposition that the main reason Plaintiff was terminated was because Center Square believed he had violated the company's sexual harassment policy by kissing Nicole's hand and making inappropriate comments to her. (Pl.'s Ex. I, Deposition of Frank Bottino taken June 20, 2012 (" Frank Bottino Dep." ) at 14:3-7.) Consequently, Plaintiff was terminated from Center Square on December 6, 2009.

After Plaintiff was terminated, shop steward Diane Trubiano advised the Plaintiff to file a grievance contesting his termination through his union representative, which he did. (Treusch Dep. at 66:1-23; Center Square's Statement of Uncontested Facts ¶ 16.) A Grievance Review Committee meeting was held on January 21, 2010 with regard to Plaintiff's grievance. ( Id. at ¶ 17.) After this meeting, Plaintiff received a letter from Local 152 dated January 27, 2010 which advised him that the Grievance Review Committee had voted that no further action should be taken with regards to his grievance. ( Id. at ¶ 18.) The Plaintiff then filed an appeal of the decision of the Grievance Review Committee. ( Id. at ¶ 19.) The Plaintiff received a letter from Brian String, President of Local 152, dated April 7, 2010, which explained that the Executive Board of Local 152 had met to consider his appeal of the Grievance Review committee's decision. The letter advised the Plaintiff that it was the opinion of the Executive board not to proceed to arbitration with his grievance and that the Executive Board considered this matter closed. ( Id. at ¶ 20.)

After receiving the April 7, 2010 letter from the Executive Board, Plaintiff retained his present counsel to represent him in this matter. ( Id. at ¶ 21.) His counsel wrote a letter to Plaintiff's union dated June 21, 2010, which entreated his union representative to do everything in his power to get Plaintiff's job back for him. ( Id. at ¶ 22.)

The Plaintiff filed the instant complaint more than a year later on July 12, 2011 in the Superior Court of New Jersey, Law Division, Gloucester County. The Union removed the case to federal court pursuant to 28 U.S.C. § 1441 and § 1446 on the basis of federal question jurisdiction. The Union maintained in its Notice of Removal that the Plaintiff's claims against the Union for breach of the duty of fair representation and breach of contract arose out of the provisions of the Collective Bargaining Agreement between the parties and was therefore governed by federal law. [Docket Item 1.] The Plaintiff did not file a motion to remand or otherwise oppose removal.

Discovery is now concluded and the Defendants have filed the instant motions for summary judgment.


A. Standard of Review

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