United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE.
three plaintiffs, Luz Mercado, Maralyn La Paz, and Annmarie
Lavine, were employees of a branch of Wells Fargo Bank (the
"Bank") located on South Street in Morristown, New
Jersey. They, as well as a fourth employee, David Bagley,
were fired on May 1, 2013. The Bank told the employees it was
dismissing them because they had opened accounts or issued
debit cards without the customer's presence or
authorization, and because Lavine and La Paz had falsified La
Paz's employee time records. The plaintiffs assert that
their dismissal was actually motivated by racial
discrimination, and seek damages under the New Jersey Law
Against Discrimination ("NJLAD"). Now before the
Court is the Bank's motion for summary judgment (ECF no.
factors are perhaps most critical. First, the plaintiffs were
fired based on misconduct that was thoroughly investigated
and contemporaneously documented as the basis for dismissal.
Second, these three plaintiffs-two identified as Black, and
one as Hispanic-were replaced. Three persons-two identified
as Black, and one as Hispanic-were hired as their
replacements. Under such circumstances, it is difficult to
infer the necessary discriminatory intent. And in fact the
evidence gives rise to no such inference. For the reasons
stated herein, the Bank's motion for summary judgment
will be granted.
filed this state-law Complaint in New Jersey Superior Court
on April 27, 2015. (ECF no. 1) Count 1 of the Complaint
asserts claims under the New Jersey Law Against
Discrimination ("NJLAD"), N.J. Stat. Ann. §
10:5-1 et seq., that the plaintiffs were
discriminatorily dismissed on the basis of race and age.
Count 2 asserts that the plaintiffs' dismissal
constituted a breach of contract. Count 3 asserts that the
plaintiffs' dismissal breached the implied contractual
covenant of good faith and fair dealing.
16, 2015, the Bank removed the case to federal court based on
this Court's diversity jurisdiction. See 28
U.S.C. 1332(a). The notice of removal recites that the
plaintiffs are citizens of New Jersey, that the Bank is a
citizen of South Dakota, and that the amount in controversy
exceeds $75, 000.
parties have engaged in fact discovery. On August 7, 2017,
the Bank filed the motion for summary judgment (ECF no. 51)
that is now before the Court. The plaintiffs filed a response
(ECF no. 60), and the Bank filed a reply (ECF no. 65). The
matter is fully briefed and ripe for decision.
SUMMARY JUDGMENT STANDARD
Rule of Civil Procedure 56(a) provides that summary judgment
should be granted "if the movant shows 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); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring
Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a
motion for summary judgment, a court must construe all facts
and inferences in the light most favorable to the nonmoving
party. See Boyle v. County of Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The
moving parry bears the burden of establishing that no genuine
issue of material fact remains. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). "[W]ith
respect to an issue on which the nonmoving party bears the
burden of proof ... 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."
Celotex, 477 U.S. at 325.
the moving party has met that threshold burden, the
non-moving party "must do more than simply show that
there is some metaphysical doubt as to material facts."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). The opposing party must
present actual evidence that creates a genuine issue as to a
material fact for trial. Anderson, 477 U.S. at 248;
see also Fed. R. Civ. P. 56(c) (setting forth types
of evidence on which nonmoving party must rely to support its
assertion that genuine issues of material fact exist).
"[Unsupported allegations ... and pleadings are
insufficient to repel summary judgment." Schoch v.
First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir.
1990); see also Gleason v. Norwest Mortg., Inc., 243
F.3d 130, 138 (3d Cir. 2001) ("A nonmoving party has
created a genuine issue of material fact if it has provided
sufficient evidence to allow a jury to find in its favor at
trial."). If the nonmoving party has failed "to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial, ... there can
be 'no genuine issue of material fact, ' since a
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial.'' Katz v. Aetna Cas. & Sur.
Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting
Celotex, 477 U.S. at 322-23).
deciding a motion for summary judgment, the court's role
is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for
trial. Anderson, 477 U.S. at 249, 106 S.Ct. 2505.
Credibility determinations are the province of the fact
finder. Big Apple BMW, Inc. v. BMW of N. Am., Inc.,
974 F.2d 1358, 1363 (3d Cir. 1992).
summary judgment standard, however, does not operate in a
vacuum. "[I]n ruling on a motion for summary judgment,
the judge must view the evidence presented through the prism
of the substantive evidentiary burden." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). That
shifting "evidentiary burden" is discussed in
Section III.B.1, infra.
Age Discrimination and Breach of Contract
response to the Bank's motion for summary judgment, the
plaintiffs have consented to the dismissal of a majority of
their claims. In particular, they have abandoned Count 1,
insofar as it alleges an N JLAD claim of age discrimination;
Count 2, which alleges breach of contract; and Count 3, which
alleges breach of the implied contractual covenant of good
faith and fair dealing. See Pl. Brf. 8 (concluding
discussion of racial/ethic discrimination and stating
"C. Plaintiffs abandon all other claims in the
abandoned claims are therefore dismissed on consent, with
Racial or Ethnic Discrimination under the NJLAD
single claim remains: the portion of the Count 1 NJLAD claim
that alleges discriminatory dismissal on the basis of race.
The remainder of this Opinion discusses that racial
Standard of proof - McDonnell Douglas
discrimination cases, courts evaluate motions for summary
judgment under the specialized burden-shifting regime set out
in McDonnell Douglas v. Green, 411 U.S. 792 (1973).
That framework, adopted from federal Title VII cases, applies
where, as here, the plaintiff asserts an NJLAD claim that
rests on circumstantial evidence of discrimination. Zive
v. Stanley Roberts, Inc., 182 N.J. 436, 447, 867 A.2d
1133, 1139 (2005) (applying McDonnell Douglas test
to NJLAD discrimination case); Bergen Commercial Bank v.
Sisler, 157 N.J. 188, 209, 723 A.2d 944, 954 (1999)
Douglas divides the burden of production into three
steps, shuttling between the plaintiff and the defendant.
1: The Prima Facie Case.
outset, the plaintiff must state a prima facie claim of
discrimination. Zive, 182 N.J. at 447, 867 A.2d at
1139; see Burton v. Teleflex Inc., 707 F.3d 417, 426
(3d Cir. 2013). To make out a prima facie case "in a
[N]LAD discriminatory] discharge case, a plaintiff must prove
that: (1) she was in tiie protected group; (2) she was
performing her job at a level that met her employer's
legitimate expectations; (3) she nevertheless was fired; and (4)
the employer sought someone to perform the same work after
she left." Id. at 450, 867 A.2d at 1141 (citing
Clowes v. Terminix Int'l, Inc., 109 N.J. 575,
597, 538 A.2d 794, 805 (1988)).
2: Legitimate non-discriminatory reason for the
plaintiff states a prima facie case, the burden of
production shifts to the defendant, which must articulate a
legitimate, nondiscriminatory basis for the adverse
employment action. Zive, 182 N.J. at 449, 867 A.2d
at 1140 (citing Clowes, 109 N.J. at 596, 538 A.2d at