United States District Court, D. New Jersey, Camden Vicinage
M. Kothari, Esq., Law Offices of Swati M. Kothari, Attorney
Nicholas Yost, Esq., Wawa, Inc., and Frank P. Spada, Jr.,
Esq., Semanoff, Ormsby, Greenberg & Torchia, LLC,
Attorneys for Defendant.
RENÉE MARIE BUMB United States District Judge.
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.
Factual and Procedural Background 
Plaintiff's Employment at Wawa
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]).
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.)
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
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).
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
The Allegedly Discriminatory Remarks
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.” (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.
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
The “Drive Offs” and Plaintiff's
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. 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]).
Paul looked into these transactions, he noticed that several
had occurred during Ashton's (the overnight shift
manager) shifts, and that Ashton's employee
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.
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. 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,
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
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).
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]).
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
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
Summary Judgment Standard
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.”
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 ...