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Barroso v. Lidestri Foods, Inc.

United States District Court, D. New Jersey

March 28, 2013

LIDESTRI FOODS, INC., et al., Defendants

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Daniel T. Silverman, Esquire, Kevin M. Costello, Esquire, Costello & Mains, P.C., Mount Laurel, New Jersey, Attorneys for Plaintiff Jesse Barroso.

Douglas Diaz, Esquire, Archer & Greiner, P.C., Haddonfield, New Jersey, Attorney for Defendant Lidestri Foods, Inc.[1]


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NOEL L. HILLMAN, United States District Judge.

This matter comes before the Court by way of Defendant Lidestri Foods, Inc.'s motion [Doc. No. 21] seeking summary judgment pursuant to Federal Rule of Civil Procedure 56. The Court has considered the parties' submissions and decides this matter pursuant to Federal Rule of Civil Procedure 78.

For the reasons expressed below, Defendant's motion for summary judgment will be granted.


Plaintiff originally filed the complaint in this action in the Superior Court of New Jersey, Camden County, Law Division asserting claims of sexual harassment and retaliation in violation of the New Jersey Law Against Discrimination (" NJLAD" ). Defendant Lidestri Foods, Inc. (" Lidestri" ) removed the action to this Court pursuant to 28 U.S.C. § 1441, et seq., asserting original jurisdiction exists over Plaintiff's state law claims based on diversity of citizenship jurisdiction.

The Court exercises jurisdiction in this case pursuant to 28 U.S.C. § 1332 based on complete diversity of citizenship between the parties and an amount in controversy in excess of $75,000. Plaintiff Jesse Barroso is a citizen of the state of New Jersey. (Notice of Removal [Doc. No. 1] ¶ 3(a).) Lidestri is incorporated in, and maintains its principal place of business in, the state of New York. (Id. ¶ 3(b).) The amount in controversy is met because the allegations contained in Plaintiff's complaint sufficiently demonstrate that the damages sought are in excess of $75,000, exclusive of interest and costs.[2]

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The basic facts of this case are largely undisputed and relate to Plaintiff's allegations that he was subjected to sexual harassment and retaliation during his employment at Lidestri. In November of 2008, Plaintiff was hired to work for Lidestri as a forklift operator at its Pennsauken, New Jersey manufacturing facility. (Lidestri's Statement of Undisputed Material Facts [Doc. No. 21-3] (hereinafter, " Lidestri's Statement" ), ¶ ¶ 1-2; Pl.'s Reply to Def.'s Statement of Undisputed Material Facts [Doc. No. 24-1] (hereinafter, " Pl.'s Statement" ), ¶ ¶ 1-2.) Lidestri's Pennsuaken facility consists of two separate buildings: a warehouse building known, as the " 1600 Building," and a production building where the receiving dock was located, known as the " 1550 Building." (Lidestri's Statement ¶ 1; Pl.'s Statement ¶ 1.)

During the course of his employment, Plaintiff worked in the receiving area of the 1550 Building. (Lidestri's Statement ¶ 2; Pl.'s Statement ¶ 2.) In the fall of 2010, the time period relevant to this action, Plaintiff worked the second shift at the 1550 Building from Monday through Friday.[3] (Lidestri's Statement ¶ 20; Pl.'s Statement ¶ 20.) Near the end of September 2010, a warehouse shift manager at Lidestri by the name of Michael Shaw began working the second shift on both Thursday and Fridays. (Lidestri's Statement ¶ ¶ 14, 19; Pl.'s Statement ¶ 14, 19.) Shaw's primary responsibility at Lidestri was oversight of the 1600 Building where his office was located. (Lidestri's Statement ¶ 15; Pl.'s Statement ¶ 15.) However, while working the second shift Shaw " would see the employees in the 1550 [B]uilding maybe two or three times a day in passing just to ensure the employees were performing their assigned tasks." (Lidestri's Statement ¶ 22; Pl.'s Statement ¶ 22.)

On December 13, 2010, Kathleen Jehens, Lidestri's Human Resources Manager at the Pennsuaken facility, received a letter from another forklift driver, Hosmay Jorrin, complaining of sexual harassment by Shaw. (Lidestri's Statement ¶ ¶ 39-43; Pl.'s Statement ¶ ¶ 31, 38; see also Undated Letter from Hosmay Jorrin, Ex. 8 to Lidestri's Statement, 1.) Plaintiff, along with several other Lidestri employees, signed the letter Jorrin submitted complaining of Shaw's conduct. (Lidestri's Statement ¶ 39, Pl.'s Statement 39.) Upon receipt of Jorrin's letter on December 13, 2010, Jehens began an internal investigation into Plaintiff's allegations against Shaw commencing the following morning on December 14, 2010.[4] (Lidestri's Statement ¶ 40;

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Pl.'s Statement ¶ 40.) Moreover, Lidestri immediately removed Shaw from his duties as a warehouse shift manager in the 1550 Building after receipt of Jorrin's letter.[5] (Lidestri's Statement ¶ 41; Pl.'s Statement ¶ 41.)

Jehens' investigation consisted of interviews of ten Lidestri employees from December 14, 2010 through December 21, 2010, including Plaintiff and Shaw. (Lidestri's Statement ¶ ¶ 42-46; Pl.'s Statement ¶ ¶ 42-46.) With respect to Plaintiff's complaints of sexual harassment by Shaw, Jehens' investigation and interview of Plaintiff revealed that Shaw's conduct toward Plaintiff included the following: (1) comments Shaw made to Plaintiff such as " hurry up before I snatch your balls" or " before I grab [your penis]" ; (2) Shaw referring to Plaintiff as " pumpkin" or " hon" rather than by his name; (3) Shaw touching Plaintiff's leg or shoulder while speaking to Plaintiff; (4) Shaw rubbing his own nipples with his shirt on; (5) Plaintiff hearing Shaw tell a different male employee that Shaw wanted " to grab [the employee's] boobs" ; and (5) Plaintiff observing Shaw touch Jorrin's shoulder while telling Jorrin he had a " sexy accent" . (Lidestri's Statement ¶ 25; Pl.'s Statement ¶ 25.) Plaintiff later testified that although he initially thought Shaw was just joking, he later felt " uncomfortable" with Shaw's conduct but was still able to perform his job duties despite Shaw's behavior. (Lidestri's Statement ¶ ¶ 26-27; Pl.'s Statement ¶ ¶ 26-27.)

After Jehens completed her investigation, she advised Jane Oca, Lidestri's Corporate Human Resources Manager, of what the employees reported in the interviews. (Lidestri's Statement ¶ 53; Pl.'s Statement ¶ 53.) Oca then discussed the matter with Lidestri's Vice-President, Donna Yanicky, and the Director of the Warehouse, Lee Biscardi, who collectively decided to terminate Shaw's employment. (Lidestri's Statement ¶ 54; Pl.'s Statement ¶ 54.) Shaw was terminated from Lidestri on December 22, 2010, approximately eleven (11) days after Jehens first received Jorrin's letter. (Lidestri's Statement ¶ 55; Pl.'s Statement ¶ 55.)

Following Shaw's termination, another warehouse shift manager at Lidestri, specifically Michael DiMaio, became Plaintiff's shift manager for a couple of hours during the day. (Lidestri's Statement ¶ 56; Pl.'s Statement ¶ 56.) Plaintiff claims that almost immediately after his complaint of sexual harassment to Human Resources, DiMaio started retaliating against Plaintiff by: (1) on one occasion taking Plaintiff's forklift and instructing Plaintiff to get another one; (2) making statements to other employees requesting that they watch what Plaintiff was doing and let DiMaio know; (3) using curse words when speaking to Plaintiff; (4) instructing Plaintiff on one occasion to go " break bins" although this was not part of Plaintiff's typical job duties; (5) by requesting Plaintiff perform someone else's job; and (6) giving Plaintiff a write-up after Plaintiff failed to work on a Saturday when he was told to report. (Lidestri's Statement ¶ 57; Pl.'s Statement ¶ 57.)

Based on these facts, Plaintiff brings a two count complaint asserting claims for sexual harassment and retaliation in violation of the NJLAD. As to his claim for sexual harassment, Plaintiff alleges he was

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" exposed to purposeful and egregious sexual harassment, combined with willful indifference on the part of upper management and/or participation on the part of management" such that Lidestri is responsible for Shaw's conduct. (First Am. Compl. ¶ ¶ 24-25.) Plaintiff further claims that he engaged in protected conduct under the NJLAD by complaining of Shaw's conduct, which was a determinative ...

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