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Shinn v. Fedex Freight, Inc.

United States District Court, D. New Jersey

September 7, 2018


          GRAHAM FAVILLE BAIRD LAW OFFICES ERIC A. SHORE, P.C. On behalf of Plaintiffs

          DAVID S. FRYMAN AMY LEIGH BASHORE BALLARD SPAHR LLP On behalf of Defendant FedEx Freight, Inc.


          NOEL L. HILLMAN, U.S.D.J.

         This is 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.


         Unless 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.

         FedEx 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 this meeting.

         A. April 29, 2015 Break Room Incident

         On 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.

         Shinn 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 lady.
. . . .
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 35-36).

         According 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 violence policy.

         B. June 28, 2015 Facebook Post

         On June 29, 2015, a FedEx employee gave Long a printed screenshot of Facebook postings made by Ellis and Shinn on June 28, 2015, which read:

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

         Long 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.

         FedEx 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.

         C. FMLA Leave

         Ellis 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).

         On May 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).

         Ellis 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; correct?
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).

         Ellis 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 like you.

         Defendant 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.

         FedEx's 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. ...

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