The opinion of the court was delivered by: Hillman, District Judge
This matter comes before the Court by way of Defendant Lidestri Foods, Inc.'s motion [Doc. No. 19] 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 is 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, retaliation, and retaliatory termination 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.
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 Hosmay Jorrin 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.*fn2
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 April of 2008, Plaintiff, a Hispanic male, 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. 19-3] (hereinafter, "Lidestri's Statement"), ¶¶ 1-2; Pl.'s Reply to Def.'s Statement of Undisputed Material Facts [Doc. No. 23-1] (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 1550 Building and he considered warehouse shift manager, Roger Valladares, to be his "main supervisor." (Lidestri's Statement ¶ 2, 21; Pl.'s Statement ¶ 2, 21.) In the fall of 2010, the time period relevant to this action, Plaintiff worked the second shift at the 1550 Building, but did not work on Fridays. (Lidestri's Statement ¶ 20; Pl.'s Statement ¶ 20.) Near the end of September 2010, another warehouse shift manager, 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 ¶ 23; Pl.'s Statement ¶ 23.)
On December 13, 2010, Kathleen Jehens, Lidestri's Human Resources Manager at the Pennsuaken facility, received a letter written by Plaintiff advising Lidestri that he had been sexually harassed by Shaw while working his Thursday shifts in the 1550 Building. (Lidestri's Statement ¶¶ 39-43; Pl.'s Statement ¶¶ 39-43; see also Undated Letter from Plaintiff, Ex. 9 to Lidestri's Statement, 1.) Shaw's conduct toward Plaintiff included the following: (1) a statement by Shaw to Plaintiff that "with that sexy accent you should f[***] a lot of b[******]"; (2) a statement by Shaw that Plaintiff's "hairless face" was "sexy"; (3) conduct wherein Shaw would touch or rub Plaintiff's shoulder; (4) conduct wherein Shaw would rub his own nipples in front of Plaintiff; and (5) Shaw's statement to Plaintiff that Shaw "did not fight, he scratches." (Lidestri's Statement ¶ 27; Pl.'s Statement ¶ 27.) Plaintiff classified Shaw's conduct as an attempt "to play sexual games with" Plaintiff which made Plaintiff feel "disrespected" as a man. (Lidestri's Statement ¶ 26; Pl.'s Statement ¶ 26.) Plaintiff also alleged that on one particular Thursday in early December 2010, while Plaintiff was working in the glass line area of the 1550 Building, Shaw approached Plaintiff from behind and rubbed against Plaintiff with Shaw's midsection, including his penis. (Lidestri's Statement ¶ 35; Pl.'s Statement ¶ 35.)
Upon receipt of Plaintiff'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.*fn3
(Lidestri's Statement ¶ 44; Pl.'s Statement
¶ 44.) Moreover, Lidestri removed Shaw from serving as Plaintiff's
shift manager on Thursdays after receipt of the
letter.*fn4 (Lidestri's Statement ¶ 45; Pl.'s
Statement ¶ 45.) Jehens' investigation consisted of interviews of ten
Lidestri employees from December 14, 2010 through December 21, 2010,
including Plaintiff and Shaw. (Lidestri's Statement ¶¶ 46-47, 49;
Pl.'s Statement ¶¶ 46-47, 49.) 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 ¶ 57; Pl.'s Statement ¶ 57.) 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 ¶ 58; Pl.'s
Statement ¶ 58.) Shaw was terminated from Lidestri on December 22,
2010, approximately eleven (11) days after Jehens first received
Plaintiff's letter. (Lidestri's Statement ¶ 59; Pl.'s Statement ¶
Plaintiff contends that after Shaw was terminated other warehouse shift managers at Lidestri, specifically Roger Carter and Michael DiMaio, retaliating against Plaintiff by going to Plaintiff's worksite every day to check on him, by "overchecking" on Plaintiff, and by returning to Plaintiff's worksite again at night for an additional visit.*fn5 (Lidestri's Statement ¶¶ 77-79; Pl.'s Statement ¶¶ 77-79.) Several weeks later, on January 13, 2011, Lidestri terminated Plaintiff's employment on the basis of insubordination and cursing at a supervisor in relation to an alleged incident which occurred that same day between DiMaio and Plaintiff. (Lidestri's Statement ¶¶ 72-76.) Plaintiff denies that he engaged in any form of insubordination or cursing, and that he was terminated in retaliation for having made a complaint of sexual harassment. (Pl.'s Statement ¶ 72.)
Based on these facts, Plaintiff brings a three count complaint asserting a claims for sexual harassment, retaliation, and retaliatory discharge in violation of the NJLAD. As to his claim for sexual harassment, Plaintiff alleges that Lidestri is responsible for Shaw's conduct based on Shaw's status as a supervisor, because Lidestri failed to reasonably promulgate a policy prohibiting such harassment, and because the harassment Plaintiff experienced qualifies as sexual harassment under the NJLAD. (Compl. ¶¶ 33-35.) Plaintiff further claims that he engaged in protected conduct under the NJLAD by complaining of Shaw's conduct, which was a determinative and motivating factor in the severe and pervasive retaliatory harassment he was subjected to. (Id. ¶ 38.) Finally, with respect to his termination, Plaintiff contends that shortly after he engaged in this protected conduct, he was terminated and "his membership in a protected group and ... his protected conduct under the LAD" were determinative and motivating causes for his discharge. (Id. ¶¶ 41-42.)
A. Summary Judgment Standard
In the present motion, Lidestri seeks the entry of summary judgment in its favor on all of Plaintiff's claims under the NJLAD. Summary judgment is appropriate where the Court is satisfied that "'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) (citing FED. R. CIV. P. 56).
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. 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 considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the nonmoving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323 ("[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." (citation omitted); see also Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) ("Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, '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' when the nonmoving party bears the ultimate burden of proof.") (citing Celotex, 477 U.S. at 325).
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. Celotex, 477 U.S. at 324. A "party opposing summary judgment may not rest upon the mere allegations or denials of the ... pleading[s.]" Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (internal quotations omitted). For "the non-moving party to prevail, [that party] must 'make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Cooper v. Sniezek, 418 F. App'x 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at 322 ). 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. Anderson, 477 U.S. at 256-57.
B. NJLAD Sexual Harassment Hostile Environment Claims
As the New Jersey Supreme Court has long recognized, "New Jersey has a strong interest in maintaining 'discrimination-free workplace[s]' for workers." Cutler v. Dorn, 955 A.2d 917, 923 (N.J. 2008) (citing Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 452 (1993)). The NJLAD makes it an unlawful [f]or an employer, because of the race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, sex ... of any individual, ... to refuse to hire or employ or to bar or to discharge ... from ...