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Hajra v. Wawa Inc.

United States District Court, D. New Jersey, Camden Vicinage

January 26, 2018

SAFET HAJRA, Plaintiff,
v.
WAWA, INC., Defendant.

          Swati M. Kothari, Esq., Law Offices of Swati M. Kothari, Attorney for Plaintiff.

          Edward Nicholas Yost, Esq., Wawa, Inc., and Frank P. Spada, Jr., Esq., Semanoff, Ormsby, Greenberg & Torchia, LLC, Attorneys for Defendant.

          OPINION

          RENÉE MARIE BUMB United States District Judge.

         This matter comes before the Court upon the filing of a motion for summary judgment [Dkt. No. 14] by Defendant Wawa, Inc. (the “Defendant” or “Wawa”), seeking the dismissal of the above-captioned matter brought by Plaintiff Safet Hajra (the “Plaintiff” or “Hajra”) in its entirety. Having considered the parties' submissions and for the reasons set forth below, the Court grants Defendant's motion.

         I. Factual and Procedural Background [1]

         A. Plaintiff's Employment at Wawa

         Plaintiff is a Muslim who immigrated to the United States from Kosovo. (Pl.'s Dep. 9:12-14). He was hired as a Customer Service Associate at Wawa's Pemberton, New Jersey store in or around September 2010 by its General Manager, Emmanuel Paul (“Paul”). (Id. at 16:2-20). In or around November 2010, Plaintiff transitioned from Customer Service Associate to Fuel Court Associate. (Id. at 24:22-25:5; 45:5-10; Deposition of Emmanuel Paul (“Paul Dep.”) at 51:10-52:9). In each of these positions, Plaintiff was an at-will employee. (Yost Decl., Ex. C at 1 [Dkt. No. 14-5]).

         Plaintiff was initially paid $9.00 per hour as a Customer Service Associate. (Yost Decl., Ex. D [Dkt. No. 14-6]). Around the time he was transferred to the fuel court, Plaintiff's pay was raised to $9.10 per hour. (Id.) Plaintiff's hourly pay was again raised to $9.25 per hour in March, 2011. (Id.) In March 2012 Plaintiff's pay was raised to $9.65 per hour. (Id.)

         When Plaintiff was hired as a Customer Service Associate, he was provided with a uniform including a shirt, hat, and apron. (Pl.'s Dep. 21:11-24). When he was transferred to the fuel court, Wawa provided Plaintiff with a Fuel Court Associate uniform, which consisted of a shirt, pants, a jacket, and a hat. (Id. at 45:5-21). Wawa employed an automated system through which employees could log in and order new uniforms themselves. (Id. at 44:23-45:4). During his time as a Fuel Court Associate, Plaintiff attempted to use this system to request a new uniform, but because he was still listed as a Customer Service Associate in Wawa's computer system he was only able to order a new shirt. (Id. at 47:7-25; Paul Dep. at 51:18-52:4).[2]

         As a Fuel Court Associate, Plaintiff's responsibilities included, among other things, providing service to customers at Wawa's gas station, pumping gas for customers, processing payments for gas, and performing other tasks both inside and outside of the store as assigned. (Pl.'s Dep. at 25:23-27:6; Paul Dep. at 52:10-18; Yost Decl., Ex. F, at 1-2 [Dkt. No. 14-2]). Plaintiff worked overnight on the fuel court, working shifts of varying lengths between 10:00 P.M. and 7:00 A.M. (Pl.'s Dep. at 43:2-13). On a typical shift, Plaintiff was the only Fuel Court Associate on duty and was alone on the fuel court. (Id. at 51:21-23).

         The Shift Manager for the majority of Plaintiff's shifts was Paul Ashton (“Ashton”). (Id. at 48:18-50:1). Ashton, who as a Shift Manager was responsible for the operations of the store during his shift, worked inside the store while Plaintiff worked outside. (Id.) In addition to Ashton, Plaintiff worked at various times with, among others, Emmanuel Paul and Elaine Crawford (“Crawford”).

         B. The Allegedly Discriminatory Remarks

         Crawford was hired in 2011 as an Assistant General Manager. (Deposition of Elaine Crawford (“Crawford Dep.”) at 13:9-15). On at least two occasions, while at work, Crawford told Plaintiff to “speak English.”[3] (Pl.'s Dep. at 147-48; Crawford Dep. at 74:9-11). The day after the last of these comments, which Crawford made on or about April 29, 2012, Plaintiff complained to Paul. (Pl.'s Dep. at 147:12-14; Paul Dep. at 49:14-50:18).

         In response to Plaintiff's complaint, Paul approached Crawford and told her that Plaintiff had taken offense to what she said, and that she should desist from making such comments, whatever her intent. (Paul Dep. at 50:5-10; Crawford Dep. at 59:24-60:3). Paul also issued Crawford a written warning, known as a “FOSA” in Wawa corporate parlance. (Paul Dep. 50:11-18). The next day Crawford sought out Plaintiff and apologized. (Pl.'s Dep. 147:15-148:1; Crawford Dep. 60:4-15). Crawford made no further comments after being reprimanded by Paul (Pl.'s Dep. 148:5-9).

         C. The “Drive Offs” and Plaintiff's Termination

         In late April, 2012, around the time Plaintiff complained of Crawford's comments to Paul, Paul noticed that there had been several “drive-offs” registered on the fuel court that month. A “drive-off” occurs when a customer gets gas, but drives away without ever paying. (Id. at 55:5-10). The April, 2012 “drive-offs” came to Paul's attention when he reviewed the store's Transaction Journal.[4] The Transaction Journal is a report generated by Wawa that captures, among other things, the date and time of every transaction at the store (including “drive-offs”), the register at which the transaction was processed, the type of transaction, the amount of the transaction, and the employee who was logged into the register at the time of the transaction. (See, e.g., Yost Decl., Ex. J [Dkt. No. 14-12]).

         When Paul looked into these transactions, he noticed that several had occurred during Ashton's (the overnight shift manager) shifts, and that Ashton's employee PIN[5] had been used to process several “drive-offs” that month. (Paul Dep. 13:21-14:5). According to Paul, this “raised a red flag.” (Id.) On April 30, 2012, alerted to what he perceived as a possible irregularity, Paul contacted Patricia Wallace (“Wallace”), who worked in loss prevention at Wawa, and asked her to investigate. (Deposition of Patricia Wallace “Wallace Dep.” at 15:21-23, 40:1-7; Yost Decl., Ex. M [Dkt. No. 14-15]; see also, Paul Dep. 11-13).

         Wallace investigated by reviewing the Transaction Journal, video of the fuel court-including video of the kiosks where the registers were housed, and the timesheets for the date and time of each of the transactions. (Wallace Dep. at 32:16-19). Upon conducting her review, Wallace concluded that on at least eleven occasions, Plaintiff had performed fraudulent “drive-offs, ” that is, he registered a “drive-off” in Wawa's system when the customer had actually paid for gas in cash.[6] Wallace reached this conclusion based on (1) her opinion that none of the typical signs of a “drive-off”-customers getting out of their vehicles to remove the nozzle from their cars themselves and speeding off-were present; (2) the fact that Plaintiff was working at the time each of the supposed “drive-offs” occurred; and (3) the fact that Plaintiff was on video at the register at which each of these “drive-offs” was entered at the time it was entered. (Id. at 25:2-8, 32:8-19, 46:4-15, 65:8-20, 102:12).

         At Plaintiff's deposition, counsel for Wawa walked Plaintiff through the process Wallace had undertaken, having Plaintiff confirm that he was on duty when these “drive-offs” occurred and that he was indeed shown on video in the register kiosks at or about the time the “drive-offs” were processed. (See Pl.'s Dep. 68-110). The video contained a time signature, which Plaintiff also acknowledged. (Pl.'s Dep. at 68-115). Still, Plaintiff denies that he performed any fraudulent “drive-offs.” He further maintains that because, according to Plaintiff, a manager's PIN is required to process a “drive-off, ” he could not have executed the majority of the fraudulent “drive-offs” of which he was accused.[7]

         On May 4, 2012, Wallace interviewed Plaintiff in Paul's office. (Yost Decl., Ex. M; Pl.'s Dep. at 113:1-3; Wallace Dep. at 42:4-8). Paul was present for parts of this interview, but was not there for its entirety. (Pl.'s Dep. at 113:14-16; Wallace Dep. at 42:14-22). Paul and Wallace played Plaintiff the videos from the fuel court at the time of the “drive-offs” and asked him a number of questions about what he was being shown. (Wallace Dep. at 45:3-6; Pl.'s Dep. at 115:4-8; Paul Dep. at 48:10-12). Plaintiff denied having stolen anything. Plaintiff also alleges that during the course of the interview Wallace called him a “criminal” and threatened to have him deported. (Pl.'s Dep. 114:21-115:1). Wallace denies having made either comment. At the close of the interview, Wallace informed Paul that she had concluded that Plaintiff fraudulently registered several “drive-offs.” (Wallace Dep. at 89:18-90:12; Paul Dep. at 23:3-5). Based on this information, Paul immediately terminated Plaintiff's employment. (Pl.'s Dep. 122:13-18; Wallace Dep. at 45:3-6; Paul Dep. at 39:3-4).

         Wallace also filed a report with the Pemberton Police Department accusing Plaintiff of theft and provided a detective with copies of the video surveillance and Transaction Journal. (Wallace Dep. at 72:10-20; Yost Decl., Ex. M, at 2). Plaintiff was arrested and charged with theft, ultimately pleading guilty to a lesser offense. (Pl.'s Dep. at 126:7-11, 128:22-129:18; Yost Decl., Ex. N [Dkt. No. 14-16]).

         D. This Suit

         In August, 2012, Plaintiff filed a charge of discrimination against Wawa with the Equal Employment Opportunity Commission (“EEOC”). On August 3, 2015, the EEOC issued a Notice of Right to Sue. (Compl. ¶ 10). On October 15, 2015, Plaintiff filed a four-count Complaint alleging (1) national origin and religious discrimination in violation of Title VII of 42 U.S.C. § 2000e, et seq. (“Title VII”) (“Count One”); (2) retaliation in violation of Title VII (“Count Two”); (3) discrimination and hostile work environment harassment in Violation of 42 U.S.C. § 1981 (“Section 1981”) (“Count Three”); and (4) retaliation in violation of Section 1981 (“Count Four”). (Compl. ¶ 40-57). On December 10, 2015, Defendant answered.

         On February 3, 2017, after discovery had been completed, Wawa filed this motion, and on February 21, 2017, Plaintiff submitted his opposition. As discussed above, Plaintiff's opposition did not include the statement of material facts required by L. Civ. R. 56.1. Instead of the requisite statement, Plaintiff attached a declaration lacking any citation to the record. (Pl.'s Decl. [Dkt. No. 18-2]). On September 22, 2017, the Court ordered the parties to brief two issues: (1) what consequence Plaintiff should face for failure to comply with Fed.R.Civ.P. 56(c) and L. Civ. R. 56.1 and (2) whether Plaintiff's Declaration is a “sham affidavit” inconsistent with his previous testimony and submitted solely for the purpose of defeating summary judgment, see, e.g., Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 251-55 (3d Cir. 2007), and if so, what effect that should have on the Court's consideration of the evidence presented by Plaintiff therein. The Court held oral argument on November 6, 2017.[8]

         II. Summary Judgment Standard

         Summary judgment shall 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). A fact is “material” if it will “affect the outcome of the suit under the governing law[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if it could lead a “reasonable jury [to] return a verdict for the nonmoving party.” Id.

         In determining the existence of a genuine dispute of material fact, a court's role is not to weigh the evidence; all reasonable “inferences, doubts, and issues of credibility should be resolved against the moving party.” Meyer v. Riegel Prods. Corps., 720 F.2d 303, 307 n.2 (3d Cir. 1983). However, a mere “scintilla of evidence, ” without more, will not give rise to a genuine dispute for trial. Anderson, 477 U.S. at 252. Moreover, a court need not adopt the version of facts asserted by the nonmoving party if those facts are “utterly discredited by the record [so] that no reasonable jury” could believe them. Scott v. Harris, 550 U.S. 372, 380 (2007). In the face of such evidence, summary judgment is still ...


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