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Durand v. Fedex

United States District Court, D. New Jersey

January 12, 2015

MANUEL A. DURAND, Plaintiff,
FEDEX, Defendant.


WILLIAM J. MARTINI, District Judge.

Defendant FedEx brings this Motion for Reconsideration of an Opinion and Order denying in part Defendant's Motion for Summary Judgment. Plaintiff pro se Manuel A. Durand opposed. There was no oral argument. L.Civ.R. 78.1(b). For the reasons set forth below, Defendant's Motion for Reconsideration is DENIED.


In brief, this is an employment discrimination case. After working more than a decade as a freight handler for FedEx, Durand began to experience hostility and retaliation at the hands of his former Team Leader, Maria Toscano. Toscano blatantly let Durand know that the retaliation and hostility was the direct result of his Peruvian ethnicity and his participation as a witness in an investigation of workplace discrimination. Even after Toscano left her position as Durand's superior, Toscano's replacement, Doug Swiney continued to harass, humiliate, and threaten Durand. As Durand continued to complain, Durand and his co-workers observed continued retaliation in the form of unfavorable job assignments and humiliating treatment. Finally, Swiney and two other superiors filed an internal complaint accusing Durand of discrimination. Due to this complaint, FedEx transferred Durand.

On October 15, 2013, FedEx filed a Motion for Summary Judgment. Plaintiff pro se filed his own Opposition, supported by substantial documentation, to support his claims of workplace discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. FedEx filed no reply.

On May 22, 2014, this Court entered an Opinion and Order denying summary judgment with respect to Plaintiff's Title VII claim. Also, on May 22, 2014, the Court granted Plaintiff's application for the appointment of pro bono counsel. After the denial of summary judgment, but before the entry of pro bono counsel's appearance, Defendant filed this Motion for Reconsideration.


Motions for reconsideration filed in the District of New Jersey are governed by Local Rule 7.1(i) of the Local U.S. District Court Rules, rather than the Federal Rules of Civil Procedure. Dunn v. Reed Grp., Inc., No. CIV.08-1632 (FLW), 2010 WL 174861, at *1 (D.N.J. Jan. 13, 2010) ( citing Lite, N.J. Federal Practice Rules, Comment 6 to L.Civ.R. 7.1 (Gann 2008)). "The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Under Local Rule 7.1(i), a motion for reconsideration may be granted if: (1) an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice. Champion Labs., Inc. v. Metex Corp., 677 F.Supp.2d 748, 750 (D.N.J. 2010) ( citing Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). Local Rule 7.1(i) does not permit a court to rethink its previous decision; instead, the rule permits a reconsideration only when "dispositive factual matters or controlling decisions of law were presented to the court but were overlooked." Prophete v. Univ. of New England, 2006 WL 1074664, at *1 (D.N.J. Apr. 21, 2006) ( citing Resorts Int'l v. Greate Bay Hotel and Casino, 830 F.Supp. 826, 831 (D.N.J. 1992)).


Defendant only seeks reconsideration under the third prong of Local Rule 7.1. We will review some factual and legal issues for additional analysis of the Plaintiff's Title VII claim. These include the Court's consideration of out-of-court statements made by Durand's co-workers, a factual error regarding the date when Doug Swiney made a particular threat, the Court's consideration of Durand's transfer as a discrete act of retaliation or discrimination in violation of Title VII, and the existence of Title VII liability on a hostile work environment theory. Ultimately there was no clear error in denying summary judgment.

A. Out of Court Statements by Durand's Co-Workers

In the Motion for Reconsideration, FedEx argues that the Court erred in considering the statements that Durand's co-workers made about the existence of discrimination, retaliation, and harassment at the FedEx facility where they worked. FedEx failed to raise this issue in the reply brief it never filed. Nevertheless, we address the issue here briefly.

FedEx makes this argument, relying entirely on Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir. 2009), which stated, "Hearsay statements that would be inadmissible at trial may not be considered for purposes of summary judgment." FedEx takes this statement out of context and fails to persuade that consideration of the co-workers' statements was a clear error of law.

In Smith v. Allentown, the statements excluded from consideration at summary judgment were statements that were not capable of admission at trial; the statements were double hearsay, and the witness who was to be called to testify about those statements was not the original declarant. 589 F.3d at 693-94. In this case, by contrast, Durand's co-workers' statements could be admissible at trial if Durand calls the co-workers to testify about their own statements. See also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (stating that a nonmoving party need not depose his own witnesses or "produce evidence in a form that would be admissible at trial in order to avoid summary judgment.").

B. Factual Error Regarding Date of Swiney's Threat to Hispanic Employees

The Opinion contained a factual error involving the date that Durand's Team Leader, Doug Swiney, threatened possible violence against Hispanic employees. The import of this factual error is that Swiney's threat, standing alone, cannot constitute a violation of Title VII; such a stand-alone claim would be time-barred. Even taking into account this factual error, however, there was still no clear error in denying summary judgment.

Under Title VII's terms, an individual challenging an unlawful employment practice must file a formal charge with the EEOC prior to commencing suit in court to challenge the practice. See 42 U.S.C. § 2000e-5(e)(1); § 2000e-5(f)(1). In New Jersey, a plaintiff must submit his EEOC charge within 300 days of the challenged employment action. Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000).

The Court misconstrued paragraph 30 of FedEx's statement of fact (ECF No. 14-1 at 7) and Durand's deposition transcript at 102:19-103:11 (ECF No. 14-6 at 3-4) as indicating that Swiney's threat occurred following Durand's first official internal complaint against Swiney. This would have placed the threat sometime after August 2010. In fact, other portions of ...

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