United States District Court, D. New Jersey
CAROLINE HOPE MILLER SAMUEL CORDRAY WILSON DEREK SMITH LAW
GROUP PLLC On behalf of Plaintiff
G. ANTINORI BROWN & CONNERY, LLP On behalf of Defendants
L. HILLMAN, U.S.D.J.
matter concerns Plaintiff's claims of race discrimination
and retaliation by his employer. Presently before the Court
is the motion of Defendants for summary judgment. For the
reasons expressed below, Defendants' motion will be
Jesse Brown, Jr., is an African-American male who began
working for Defendants, collectively hereinafter
“Railway Construction” or “Defendant,
” as a laborer in April 2010. Plaintiff
alleges that during his time at Railway Construction, he was
discriminated and retaliated against because of his race,
Defendant did not address any of his complaints, and due to
the hostile work environment, he was forced to quit at the
end of May 2014.
events serve the basis for Plaintiff's claims: (1)
between May 2013 and April 2014 Plaintiff claims he was drug
tested a disproportionate number of times as compared to
white employees, and Defendant did not properly investigate
his complaint about the practice; (2) Defendant gave
Plaintiff a verbal warning about his attendance, which
Plaintiff claims was humiliating because they did it in front
of co-workers; (3) Plaintiff discovered a noose in the bolt
trailer he was directed to organize, and Plaintiff claims
that Defendant did not properly investigate; and (4) two
weeks after the noose incident, Plaintiff was involved in an
altercation with a white co-worker, who punched Plaintiff in
the face and was terminated from employment, but that white
employee was rehired two months later, which Plaintiff claims
evidences Defendant's discriminatory animus and caused
his constructive discharge.
has brought claims pursuant to Title VII of the Civil Rights
Act of 1964, as codified, 42 U.S.C. §§ 2000e to
2000e-17 (amended in 1972, 1978 and by the Civil Rights Act
of 1991, Pub. L. No. 102-166 (“Title VII”)), and
42 U.S.C. § 1981.Defendant has moved for summary judgment in
its favor on all of Plaintiff's claims. Plaintiff has
opposed Defendant's motion.
Summary Judgment Standard
judgment is appropriate where the Court is satisfied that the
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations, admissions, or interrogatory
answers, demonstrate that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986); Fed.R.Civ.P. 56(a).
issue is “genuine” if it is supported by evidence
such that a reasonable jury could return a verdict in the
nonmoving party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is
“material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit. Id. In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence “is to be
believed and all justifiable inferences are to be drawn in
his favor.” Marino v. Industrial Crating Co.,
358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson,
477 U.S. at 255).
the moving party has the burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Once the moving party
has met this burden, the nonmoving party must identify, by
affidavits or otherwise, specific facts showing that there is
a genuine issue for trial. Id. Thus, to withstand a
properly supported motion for summary judgment, the nonmoving
party must identify specific facts and affirmative evidence
that contradict those offered by the moving party.
Anderson, 477 U.S. at 256-57. A party opposing
summary judgment must do more than just rest upon mere
allegations, general denials, or vague statements.
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
complaint presents three types of Title VIIclaims:
discrimination, retaliation, and hostile work
environment. With regard to his discrimination claim,
in order to state a valid claim for disparate treatment on
the basis of race, Plaintiff must show: (1) he belongs to a
protected class; (2) he suffered some form of adverse
employment action; and (3) the adverse employment action
occurred under circumstances that give rise to an inference
of unlawful discrimination. Barnett v. New Jersey Transit
Corp., 573 Fed.Appx. 239, 243 (3d Cir. 2014) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973)) (other citations omitted). An adverse or
“tangible” employment action is “‘a
significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a
significant change in benefits.'” Id.
(quoting Burlington Industries, Inc. v. Ellerth, 524
U.S. 742, 761, (1998)).
Plaintiff's retaliation claim, to establish a prima facie
case of retaliation under Title VII, Plaintiff must show
that: (1) he engaged in activity protected by Title VII; (2)
the employer took an adverse employment action against him;
and (3) there was a causal connection between his
participation in the protected activity and the adverse
employment action. Moore v. City of Philadelphia,
461 F.3d 331, 340-41 (3d Cir. 2006) (citation omitted).
Plaintiff's hostile work environment claim,
“whether an environment is ‘hostile' or
‘abusive' is determined only by looking at all the
circumstances, including the frequency of the discriminatory
conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work
performance.” In re Tribune Media Company,
___F.3d ___, 2018 WL 4212086, at *9-10 (3d Cir. Sept. 5,
2018) (citation and alterations omitted). To prevail on a
hostile work environment claim, a plaintiff must show (1) the
employee suffered intentional discrimination because of his
race, (2) the discrimination was severe or pervasive, (3) the
discrimination detrimentally affected the plaintiff, (4) the
discrimination would detrimentally affect a reasonable person
in like circumstances, and, for the employer defendant, (5)
the existence of respondeat superior liability . . .
.” Id. (citations omitted).
prima facie case is established for each of these claims, the
burden of production shifts to the employer to present a
legitimate, non-discriminatory reason for its actions.
Parker v. Secretary United States Department of Veterans
Affairs, 676 Fed.Appx. 101, 104 (3d Cir. 2017) (citing
Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193
(3d Cir. 2015)). This is a “relatively light
burden.” In re Tribune, 2018 WL 421086 at *12
a reason is offered, the burden shifts back to the plaintiff
to demonstrate that the reason was merely pretext and that
discrimination was the real reason for the adverse employment
action. Parker, 676 Fed.Appx. at 104 (citing
Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)
(“[T]he non-moving plaintiff must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer's proffered legitimate
reasons for its action that a reasonable factfinder could
rationally find them ‘unworthy of
credence.'”)). Although the burden of production
shifts, “the plaintiff has the ultimate burden of
persuasion at all times.” Id. (citing
Daniels, 776 at 193).
case, even accepting that Plaintiff has established his prima
facie case for each of his three claims, Plaintiff has not
demonstrated the existence of material disputed facts to cast
doubt on Defendant's proffered legitimate reasons for its
with regard to Plaintiff's contention that he was drug
tested more times than white employees and Defendant did not
properly investigate his complaint, both of which evidence
Defendant's racial bias toward him, the undisputed facts
do not support Plaintiff's claim. According to
Defendant's policy, as well as the policies of the
companies Defendant performed work for, such as SEPTA,
employees were subject to annual, random, and job-specific
drug tests. Random drug tests were performed once a month.
the time period Plaintiff claims he was tested
disproportionately to white employees - May 2013 through
April 2014 - Plaintiff was tested seven times:
• 05/16/13 - PATCO training/annual ...