United States District Court, D. New Jersey
FAVILLE BAIRD LAW OFFICES ERIC A. SHORE, P.C. On behalf of
S. FRYMAN AMY LEIGH BASHORE BALLARD SPAHR LLP On behalf of
Defendant FedEx Freight, Inc.
L. HILLMAN, U.S.D.J.
an employment retaliation suit brought under the New Jersey
Law Against Discrimination (NJLAD) and the Family and Medical
Leave Act (FMLA) by former drivers for Defendant FedEx
Freight. Before the Court is Defendant's Motion for
Summary Judgment. For the reasons that follow, the Court will
grant summary judgment in favor of Defendant.
otherwise indicated, the Court takes its facts from
Defendant's Statement of Material Facts and
Plaintiffs' Response. From November 2003 to May 2015,
Shinn was what is referred to in the record as a “City
Driver” for FedEx at its Delanco, New Jersey Service
Center. From 2004 to July 2015, Ellis was also a City Driver
for FedEx at its Service Center. In general, FedEx City
Drivers pick up and deliver freight to customers.
maintained an Electronic Employee Handbook accessible to
employees, which included anti-discrimination/retaliation and
standards of conduct policies. Shinn and Ellis signed forms
acknowledging FedEx's Electronic Employee Handbook, which
included references to those policies. FedEx employees also
received training on workplace violence. Shinn and Ellis both
signed forms acknowledging FedEx's Workplace Violence
policy. On March 20, 2015, FedEx discussed workplace violence
in a pre-shift meeting with drivers at the Service Center.
Plaintiffs signed a form acknowledging their attendance at
April 29, 2015 Break Room Incident
April 30, 2015, FedEx employee Jeremy Homan reported to
Service Center Manager Chuck Long that an incident had
occurred between Steve Buckley, another FedEx City Driver,
and Shinn in the break room the previous day. Other employees
also reported the incident to Long. As a result, FedEx
Security Specialist Charles Bergeron investigated the
incident on May 7, 2015, which included interviewing Shinn,
Ellis, Buckley, and eleven others who were present in the
break room at the time of the incident.
testified at his deposition that on the day of the incident
Shinn was sitting at his regular table with Ellis and some
other drivers. (Tr. at 29-30). Buckley then came in and
walked over to Homan. (Tr. at 31). Buckley “said
something about Facebook fag or something like that or union
fag, ” at which point Shinn said “what are you
talking about.” (Tr. at 31). Buckley then “came
over to the table and he stuck his finger out, he said
I'm talking about you and your girlfriend, Paul
Ellis.” (Tr. at 31).
A. And then, you know, it just kind of went from nowhere to
where he's screaming at me and I'm screaming at him.
And he kept jabbing his finger in my face. And then he kind
of like ended it with a pretty nasty homosexual slur about me
and Paul. And then he turned around and walked away, and said
something about he's tired of you union fags, and walked
out of the room.
Q. Okay. Do you recall what you were screaming at each other?
A. Well, of course there was a lot of name calling on both
parts. I think I said, you know, let's go outside away
from everybody and talk about this. I guess he took it [as] a
fighting term. But I was just - we had been friends a long
time, so I thought maybe we could just talk about it and work
it out but . . .
Q. Do you recall anything else you guys were screaming about
in that exchange?
. . . .
A. It's a truck drivers room. I don't know if you
really - I really feel uncomfortable repeating them. They
were pretty bad. . . . I called him an F'ing P, for a
. . . .
Q. Do you recall any names he was calling you?
A. Yeah. He referred to me and Paul as both Facebook fags and
union fags a couple different times.
(Tr. at 31-35). There was thereafter a less heated
conversation on the dock, in which Shinn asked if Buckley
wanted to talk about it, but Buckley declined. (Tr. at
to Shinn, he was called into Long's office and told that
he was discharged, effective May 21, 2015, due to the
incident with Buckley. Shinn later filed an internal appeal
of his termination with FedEx's Termination Appeal Review
Committee (TARC), which upheld his termination. Defendant
contends the legitimate reason for Shinn's termination
was that he made a threat that violated its workplace
June 28, 2015 Facebook Post
29, 2015, a FedEx employee gave Long a printed screenshot of
Facebook postings made by Ellis and Shinn on June 28, 2015,
Stan Shinn: It's funny how low Snakes in the grass will
stop to kiss a little fedex ass[.] people you used to trust
and I called friend sneake [sic] up and ambush you and get me
fired just to look good for fedex[.] I wonder who they [are]
going to send steve [Buckley] after next
Paul Ellis: Me . . . that fucker just waltz's down the
dock every morning happy as can be . . . like nothing
happened . . . given the chance . . . he's gonna have an
accident on the dock . . . .
Stan Shinnn: Nothing lower than a fellow worker getting
another worker fired
Paul Ellis: YUP He's a SCUMBAG
was concerned about the message, taking it as a workplace
violence incident. Accordingly, he forwarded it to Employee
Relations Manager Brian Jenkins. Bergeron investigated.
According to Bergeron, Ellis admitted he recognized the post,
but claimed he meant that Buckley could get injured because
he was not paying attention on the dock. However, according
to Bergeron, Ellis advised that he could see how the words he
used could be perceived as a threat.
determined that Ellis's comments in the Facebook post
violated the workplace violence provisions in its Conduct of
Employees policy. Consequently, FedEx discharged Ellis
effective July 9, 2015. Ellis admitted that FedEx's
policy prohibiting workplace violence states that it is not
limited to physical assaults, but could include written or
spoken threats. He also admitted that the policy provides
that FedEx could discharge employees for incidents of
workplace violence. Ellis filed an internal appeal of his
termination with FedEx's TARC, which upheld his
termination. Defendant contends this is the legitimate reason
for Ellis's termination.
has spinal injuries that cause him significant back and neck
problems. (Tr. at 109). Consequently, Ellis was approved for
FMLA leave during his employment with Defendant. (Tr. at
109). He was also approved for leave to take care of his sick
mother, again under FMLA. (Tr. at 111-12).
22, 2015, Ellis called out sick because of pain. (Tr. at
123-25). Either the day before or the day before that, he had
called out to take care of his mother. (Tr. at 140). Later
that day, Ellis saw messages on Facebook from Roy Fonseca,
another driver, saying Defendant had Ellis lined up to make
deliveries to the retailer BJ's. (Tr. at 125). When Ellis
told Fonseca he was not making it in, Fonseca told him
Jenkins was mad. (Tr. at 129). Ellis questioned why a
“9 o'clock start guy” would be taking that
trailer, since he estimated it was loaded around 5:00 AM.
(Tr. at 128). Ellis stated it was not on his normal run
delivery area. (Tr. at 128).
said that while some guys like going to BJ's, he
“cannot deal with that because [he] h[as] to sit for
hours and hours and hours in the driver's room, waiting
and waiting and waiting for that to get unloaded.” (Tr.
at 130). He has told people, including Brian McGee and Long,
that he does not want to go to BJ's. (Tr. at 135). He
estimated that he has done a BJ's delivery more than five
times, but was unable to estimate whether he had done a
delivery there more or less than ten times. (Tr. at 136).
Q. Do you know how many times - do you know whether you . . .
ever did a BJ's run after you requested FMLA leave?
A. There was enough times that it revealed a pattern.
Q. And what do you mean by that?
A. If I called out for FMLA, you could be expecting a trip to
BJ's. And if it wasn't BJ's, it would be a full
trailer for what would be normally one of my normal
customers, Performance Food Group and Dunkin' Donuts,
where it would be driver unload, sort and segregate. 12, 14,
15, 16, 000 pounds of freight, breaking down hundreds and
hundreds and hundreds of pieces.
. . . .
Q. When is it, is it your convention that you would receive
one of these assignments after having called out for FMLA?
A. If it wasn't the next day, it was close enough that I
would be able to say, boy, this is no coincidence.
Q. But you agree these were part of your regular job duties;
A. Breaking down freight, yeah. That could be. To have a
whole trailer load thrown on you, no, that's not,
that's not - not, not your average day. You know, maybe a
couple skids. But certainly not whole trailer loads.
(Tr. at 136-37). When asked whether there were other
occasions when he had full trailers, he said
“[t]ypically, no. Because that would be considered a
volume run, and that would go out to somebody that had
earlier start time.” (Tr. at 138).
contends that FMLA leave was the reason for the termination
of his employment - that “they got tired of [him]
inconveniencing them with taking random time off, it
monkey-wrenched their schedule.” (Tr. at 141-42). He
based this on the times he had “paybacks for taking
off” and “just the attitudes that [he] would get
from different people in management.” (Tr. at 142).
Ellis testified at his deposition that FedEx had a
“pattern” of assigning him to BJ's or to
deliver a “full trailer” to Performance Food
Group or Dunkin Donuts either the next day or very soon after
he took FMLA leave. He testified at his deposition:
I distinctly remember saying to Brian, you know, it's
getting to be tit-for-tat with this stuff. You know, you guys
are making it, you guys are making it hard to come in here,
because I know that there's going to be punishment when I
take my Family Medical Leave. And you know, it's getting,
it's getting hard to - I forget my exact words, but
it's getting hard for me to come into work. I don't
like what's going on.
And he said, he said, well, good luck with that. And I said
what do you mean. And he says, well, who would hire someone
maintains the legitimate reason for Ellis's assignment to
BJ's or any other less desirable job was because of
business demands. FedEx did not guarantee any driver,
including Ellis, a specific route or set of customers. When
practicable, FedEx tried to assign drivers to make deliveries
in a customary geographic area with which they are familiar
but, for business reasons, does not always do so. Business
issues on any given day dictated where a driver was assigned
that day since FedEx has built its business on delivering
freight on time.
Service Center sent drivers to BJ's virtually every work
day. FedEx did not have a designated driver for BJ's;
dozens of drivers serviced BJ's. While BJ's was not
one of Ellis's customary customers, it was in the same
geographic area in which he usually delivered. Ellis serviced
BJ's 6 times between January 1, 2013 and July 9, 2015.