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Ewell v. NBA Properties, Inc.

United States District Court, D. New Jersey

March 23, 2015





KEVIN MCNULTY, United States District Judge

The plaintiff, Anthony Ewell, was fired from his job as a project manager in the information technology department of defendant NBA Properties, Inc. NBA Properties says it terminated Mr. Ewell because, while traveling on business, he behaved irresponsibly at a bar and missed work the following morning. Ewell contends that NBA Properties fired him on a pretext; the real reason, he says, was his race. The defendants have filed a motion for summary judgment. The motion will be granted as to all counts.


Anthony Ewell worked in the IT department for NBA Properties, Inc. (an entity related to the National Basketball Association). (NBA Stmt., ¶ ¶ 1-2).[1] He worked for NBA Properties from 1996 to 2010, and received positive performance evaluations. (Ewell Brief, 3).

On June 24, 2010, NBA Properties terminated Mr. Ewell. (Case Dep., 86-87). At the time, a representative of the organization told Ewell that he was being terminated because of his actions at a bar in Boston while traveling for an NBA event. ( Id. 97).

In June 2010, NBA Properties sent Mr. Ewell from his usual office in Secaucus, New Jersey, to Boston. His assignment was to assist in issuing press credentials at the NBA Finals, the national championship series that culminates the NBA season.

On the evening of June 9, 2010, after finishing his shift, Mr. Ewell went to a Boston bar to hear a performance by a band. (Ewell Brief, 6). One member of the band was defendant Michael Gliedman, who was the Chief Information Officer of NBA Properties and hence the head of Ewell's department. ( Id. at 6; NBA Brief, 1). Several other NBA employees were in attendance. (Ewell Dep., 177).

After Gliedman's band finished its set, Ewell and other NBA employees moved to a second bar. There they remained until closing time, around 2:00 a.m. Ewell drank alcohol over the course of the evening. (Case Dep., 90). Asked in his deposition whether he was drunk when the bar closed, he responded, " I had no more, no less, probably, than most people and other individuals at that bar." (Ewell Dep., 194). He elsewhere described his state as not " overly inebriated." (Case Dep., 90).

A bartender presented Mr. Ewell with the check; Ewell believed the charges were too high. He therefore " commenced a debate with the bartender and a waitress regarding the credit card bill." (Ewell Supp. Stmt., ¶ 36). The outcome of that debate was that two bouncers " grabbed each of Plaintiff's arms," punched him and " assaulted him very severely." ( Id. at Kf 37-40). Ewell was " knocked out" and " laid out" on the floor, a " massive amount of blood" flowing from his mouth and face. ( Id. at ¶ ¶ 41-42). Physically thrown out of the bar, he chipped his tooth on the sidewalk. (NBA Stmt, ¶ ¶ 20-22; Ewell Stmt., ¶ ¶ 20-22). Three of Ewell's colleagues went outside, where a police officer told them that if they did not remove Ewell, the officer would do so himself. ( Id. at ¶ ¶ 24-25). Four of Ewell's colleagues then took him to a local hospital. ( Id. at ¶ 26). The hospital treated Ewell's injuries and released him at approximately 4:00 a.m. Id.[2]

Mr. Ewell was scheduled to report to work at 8:45 a.m., but he remained asleep in his hotel room. (Ewell Dep., 203-04). In his deposition he explained that he had " wounds all the way around my face," a chipped tooth, and " blood all over my face" ; in short, he was in " no condition to work." ( Id. at 204-05). " Even if I could have gotten up at 8:45 to make my wouldn't have been in the best interest to show up in the media trailer in front of NBA media," Ewell explained. ( Id. at 204). " [0]bviously, clearly, there would be some -- a lot of questions if I showed up beat up in NBA Properties media trailer." ( Id. at 206).

The person in charge of scheduling employees for the credentials operation had accompanied Mr. Ewell to the emergency room and was therefore aware of his condition. (Ewell Dep., 204). Ewell nonetheless received numerous phone calls from NBA personnel that morning. ( Id. at 205). Despite his condition, Ewell did offer to come in to work. ( Id. at 206).

Mr. Ewell's supervisors eventually decided that he should not report to work at all on June 10, 2010, or indeed for the remainder of the NBA championship series in Boston. (Ewell Dep., 207). They directed Ewell to return to New Jersey, and arranged for a substitute to travel from New Jersey to Boston. ( Id. at 208-209).

Two weeks later, on June 24, 2010, Mr. Ewell's direct supervisor, Garth Case, informed him that he was being terminated.[3] NBA Properties explains that it terminated Ewell because his actions in Boston violated the league's Employee Conduct Policy. (Mot., 1). That policy prohibits employees from " [e]ngaging in any acts that the NBA considers...contrary to its interests." ( Id. at 3; copy of policy at 72-4). The decision to terminate Ewell was made by the Chief Information Officer of NBA Properties, Michael Gliedman. (Ewell Stmt., 137).

The Complaint

Mr. Ewell filed this action on September 2, 2011. The complaint[4] contains six counts: The first count (they are not numbered) alleges that NBA Properties and Mr. Gliedman subjected Mr. Ewell to discrimination in the workplace and ultimately fired him in violation of Title VII of the Civil Rights Act. The third count makes a parallel claim under the New Jersey Law Against Discrimination (" NJLAD" ). The second count alleges that NBA Properties and Gliedman retaliated against Mr. Ewell for complaining about discrimination in the workplace, in violation of Title VII. The fourth count makes a parallel claim under the NJLAD. The fifth and sixth counts allege that the same discriminatory conduct constituted intentional and negligent infliction of emotional distress.

This Court has subject matter jurisdiction over Mr. Ewell's Title VII claims pursuant to 28 U.S.C. § 1331. The Court will assert pendent jurisdiction over Mr. Ewell's state law claims, which are part of the same case or controversy. See 28 U.S.C. § 1367(a).


NBA Properties and Mr. Gliedman have moved for summary judgment as to all claims. To prevail on summary judgment, the moving party must show that " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The court must construe the facts and inferences in the light most favorable to the nonmoving party. Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). A mere " scintilla" of evidence to support the non-moving party's position is not enough to defeat summary judgment. Rather, there must be " evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-moving party must make a factual showing; it cannot create a material issue of fact by means of conclusory statements. See Ridgewood Bd. of Ed. v. N.E., 172 F.3d 238, 252 (3d Cir. 1999).

I find that Mr. Ewell has not presented evidence sufficient to support a jury finding in his favor. The defendants' motion for summary judgment will therefore be granted.

I. Wrongful Discharge Claims

The first and third counts of the complaint allege that Mr. Ewell suffered discrimination on the basis of his race and color, culminating in his dismissal, in violation of Title VII and the NJLAD.

A. Standard of proof -- McDonnell Douglas

Courts evaluate motions for summary judgment on Title VII and NJLAD claims under a specialized burden-shifting regime. For Title VII claims, courts follow the framework set out in the Supreme Court's decision in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). For discrimination claims under the NJLAD, courts likewise use the McDonnell Douglas framework, at least where the plaintiff's case rests on circumstantial evidence. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 209, 723 A.2d 944, 954 (1999).[5]

McDonnell Douglas divides the burden of production into three phases, shifting the burden between the plaintiff and the defendant.

Step 1: The Prima Facie Case. At the outset, the plaintiff must state a prima facie claim of discrimination. Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). A prima facie case of racial discrimination encompasses four elements: 1) the plaintiff belonged to a protected class; 2) he[6] was qualified for the position in question; 3) he was subject to an adverse employment action; and 4) the adverse action was taken under circumstances giving rise to an inference of discrimination. Greene v. Virgin Islands Water & Power Auth., 557 F.App'x 189, 195 (3d Cir. 2014)[7] (citing Burton, 707 F.3d at 426); accord Shahin v. Delaware, 543 F.App'x 132, 136 (3d Cir. 2013); Rodriguez v. Nat'l R.R. Passenger Corp., 532 F.App'x 152, 153 (3d Cir. 2013).

Step 2: Legitimate non-discriminatory reason for the termination.

If the plaintiff states a prima facie case, the burden of production shifts to the defendant, which must articulate a legitimate basis for the adverse employment action. Burton, 707 F.3d at 426; Rodriguez v. Nat'l R.R. Passenger Corp., 532 F.App'x at 153. " This burden is relatively light and is satisfied if the employer provides evidence, which, if true, would permit a conclusion that it took the adverse employment action for a non-discriminatory reason." Burton, 707 F.3d at 426 (internal quotations omitted). Indeed, at this stage, " the defendant need not prove that the articulated reason actually motivated its conduct." Burton, 707 F.3d at 426 (internal quotations omitted).

Step 3: Pretext

Once the defendant has offered a non-discriminatory reason, the burden of production shifts back to the plaintiff. Now the plaintiff must present evidence to show that the defendant's stated reason is merely a pretext for discrimination. Burton, 707 F.3d at 426. The plaintiff can do that in either of two ways: (1) he can discredit defendant's proffered reason; or (2) he can offer evidence that discrimination was more likely than not a motivating or determinative factor in the adverse action. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). To meet that burden, the plaintiff may rely on direct or circumstantial evidence. Id.

If the plaintiff relies on the first method (discrediting the defendant's proffered reasons), he faces a demanding standard: he must present evidence that allows a factfinder " reasonably to infer that each of the employer's proffered non-discriminatory reasons...was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext)." Fuentes, 32 F.3d at 764 (internal quotations and citations omitted). The plaintiff " must show such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for [the asserted] non-discriminatory reasons." Iadimarco v. Runyon, 190 F.3d 151, 166 (3d Cir. 1999).

If the plaintiff relies on the second method (evidence that discrimination was a motivating factor), he can provide the required evidence in at least three ways: " by showing that the employer in the past had subjected him to unlawful discriminatory treatment, that the employer treated other, similarly situated persons not of his protected class more favorably, or that the employer has discriminated against other members of his protected class or other protected categories of persons." Fuentes, 32 F.3d at 765.

B. McDonnell-Douglas standard applied to the evidence

Mr. Ewell has presented various pieces of evidence in support of his claim that NBA Properties discriminated against him. I do not believe his evidence met his step one burden of establishing a prima facie case. Giving the benefit of the doubt, however, I also consider it in connection with step three. I consider each piece of evidence individually, and also, as urged by plaintiff's counsel, consider the overall picture that it paints. Nevertheless, Ewell's evidence fails to rebut NBA Properties' evidence of its nondiscriminatory reasons for terminating him.

1. NBA Properties' stated reasons for termination

Whether plaintiff's evidence is considered at step one or step three, it is helpful to place it in the context of step two, i.e., NBA Properties' stated reasons for terminating Mr. Ewell.

NBA Properties has offered ample evidence that it terminated Mr. Ewell for legitimate, nondiscriminatory reasons: His conduct at the bar violated the organization's conduct policy, caused him to miss work, put the organization to the expense of bringing in a substitute, and risked bad publicity. Ewell does not dispute that the events in the bar occurred, although he contends that he was not at fault. The evidence is clear that he was intoxicated to some degree, that he argued about his bar tab, and that the situation escalated to the point that he was physically thrown out of the bar. Treated at a hospital until 4 a.m., he missed work in the morning. By his own admission, he was unpresentable and physically unfit to work, and another employee was summoned from New Jersey to substitute for him.

Mr. Ewell has many grounds for complaint which, even if legitimate, would not add up to a discrimination claim. He may believe that the organization was harsh, arbitrary, or even mistaken in dismissing him. He states that the bar altercation was not his fault, and expresses understandable outrage that the bouncers injured him. He may believe that his employer, overly sensitive to bad publicity, would unreasonably have had him pay an inflated bar tab rather than assert his rights. He may believe that his employer should have credited his version of the events, and not drawn adverse inferences from the situation or the statements of other witnesses. Such complaints do not make out a claim under Title VII or the NJLAD: " To discredit the employer's proffered reason ... the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Fuentes, 32 F.3d at 765.

To put it another way, we are not trying an assault case, but a discrimination case. At issue is the employer's basis for terminating Ewell, not the particulars of the altercation in the bar. The employer, correctly or not, could have dismissed Ewell because it considered him to be at fault. Or. the employer, wisely or not, could have dismissed Ewell because, whether right or wrong, he placed himself and the NBA ...

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