United States District Court, D. New Jersey
H. RODRIGUEZ, U.S.D.J.
matter is before the Court on a motion for summary judgment
filed by Defendant FedEx Ground Package Systems, Inc.
(incorrectly captioned originally as FedEx Ground). Having
considered the parties' submissions, the Court decides
this matter without oral argument pursuant to Federal Rule of
Civil Procedure 78(b). For the reasons stated below, this
Court grants Defendant's motion for summary judgment.
Donald Russell, who is African-American, was employed by
Defendant from June 11, 2007 until his termination on or
about April 29, 2016. At the time of his termination,
Plaintiff was an Operations Manager at the FedEx Ground
location in Barrington, New Jersey. His immediate supervisor
was Sort Manager Keith Davis, who is also African-American.
Davis reported to Assistant Senior Manager Pete Adams, who in
turn reported to Timothy Norton, the senior manager of the
October of 2015, Adams allegedly engaged in a verbal
altercation with Plaintiff. Prior to this incident, Adams had
commented that Plaintiff's car and a vacation he took
must have been expensive. Plaintiff interpreted these
comments as racially motivated. Soon after the October 2015
incident, another employee advised Plaintiff that Adams
remarked about Plaintiff, “I can't stand that
nigger, I'm going to get his black ass.”
allegedly reported the comment to Norton. After doing so,
Plaintiff received allegedly unwarranted disciplines.
Plaintiff complained to a human resources manager, Edward
Donahue, who is African-American, that he believed he was
being retaliated against; Donahue left Defendant's employ
“a few weeks later, ” on or about August 4, 2015.
On January 7, 2016, Plaintiff was placed on a 90-day
Performance Improvement Plan (“PIP”),
administered by Davis. In February of 2016, Plaintiff
allegedly again complained to human resources, this time to
Mandy Knight, also African-American. Plaintiff was terminated
on April 29, 2016 for alleged performance issues.
case, Plaintiff asserts claims for racial harassment in
violation of NJLAD, retaliatory harassment in violation of
NJLAD, retaliatory discharge in violation of NJLAD, and a
request for equitable relief.
judgment is proper if there is no genuine issue of material
fact and if, viewing the facts in the light most favorable to
the non-moving party, the moving party is entitled to
judgment as a matter of law.” Pearson v. Component
Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)); accord Fed. R. Civ. P. 56 (a). Thus, the
Court will enter summary judgment in favor of a movant who
shows that it is entitled to judgment as a matter of law, and
supports the showing that there is no genuine dispute as to
any material fact by “citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations . . . admissions, interrogatory
answers, or other materials.” Fed.R.Civ.P. 56
issue is “genuine” if 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 determining whether a genuine issue of
material fact exists, the court must view the facts and all
reasonable inferences drawn from those facts in the light
most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
the moving party has the burden of demonstrating the absence
of a genuine issue of material fact. Celotex, 477
U.S. at 323. 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.; Maidenbaum v. Bally's Park
Place, Inc., 870 F.Supp. 1254, 1258 (D.N.J. 1994). 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
nonmoving party may not ‘rest upon mere allegations,
general denials or . . . vague statements . . . .'”
Trap Rock Indus., Inc. v. Local 825, Int'l
Union of Operating Eng'rs, 982 F.2d 884, 890 (3d
Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934
F.2d 497, 500 (3d Cir. 1991)). Indeed,
the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.
Celotex, 477 U.S. at 322. That is, the movant can
support the assertion that a fact cannot be genuinely
disputed by showing that “an adverse party cannot
produce admissible evidence to support the [alleged dispute
of] fact.” Fed.R.Civ.P. 56(c)(1)(B); accord
Fed. R. Civ. P. 56(c)(2).
deciding the merits of a party's motion for summary
judgment, the court's role is not to evaluate the
evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility
determinations are the province of the factfinder. Big
Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358,
1363 (3d Cir. 1992).
NJLAD “was enacted with the express purpose of
protecting civil rights, particularly in the area of
employment discrimination, where the NJLAD declares that the
opportunity to gain employment without fear of discrimination
is a civil right.” Thurston v. Cherry Hill
Triplex, 941 F.Supp.2d 520, 534 (D.N.J. 2008); see
Fuchilla v. Layman, 537 A.2d 652, 660 (N.J. 1988)
(“[T]he overarching goal of the [N]LAD] is nothing less
than the eradication ‘of the cancer of
discrimination.'”) (quoting Jackson v. Concord
Co., 253 A.2d 793, 799 (N.J. 1969)).
Jersey Supreme Court has explained that the NJLAD is broad
remedial legislation, designed to prohibit employers from
discriminating against employees with respect to the terms
and conditions of their employment on the basis of a
protected characteristic, such as race, religion, age, sex,
and disability. See Quinlan v. Curtiss-Wright Corp.,
8 A.3d 209, 220 (N.J. 2010) (“We have been vigilant in
interpreting the [N]LAD] in accordance with that overarching
purpose, and in recognition that it is . . . remedial
legislation that was intended to be given a broad and liberal
interpretation.”); see also N.J. Stat. Ann. §
10:5-12(a) (listing the various protected classes under the
discrimination claims brought under the NJLAD are analyzed
under the flexible burden-shifting framework established by
the United States Supreme Court in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Viscik v.
Fowler Equipment Co., 800 A.2d 826 (N.J. 2002) (adopting
McDonnell Douglas framework for NJLAD employment
discrimination cases). Under the McDonnell Douglas
framework, a plaintiff has the initial burden of establishing
a prima facie case of discrimination by pointing to
evidence in the record sufficient to create a genuine factual
dispute that “s/he suffered an adverse employment
action . . . under circumstances that could give rise to an
inference of intentional discrimination” on the basis
of race. Makky v. Chertoff, 541 F.3d 205, 214 (3d
Cir. 2008); accord Iadimarco v. Runyon, 190 F.3d
151, 163 (3d Cir. 1999) (requiring plaintiff who alleges
reverse race discrimination to present “sufficient
evidence to allow a reasonable fact finder to conclude . . .
that the defendant treated [plaintiff] less favorably than
others because of his race”).
oft-cited elements of a prima facie case of racial
discrimination are that a plaintiff: (1) is a member of a
protected class; (2) was qualified for the position; (3)
suffered an adverse employment decision; and (4) the adverse
employment action was made under circumstances that give rise
to an inference of unlawful discrimination. Jones v. Sch.
Dist. of Philadelphia, 198 F.3d 403, 412 (3d Cir. 1999).
Similarly, to establish a prima facie case of
retaliation under the NJLAD, a plaintiff must show: (1) he
belonged to a protected class; (2) he engaged in protected
activity, which was known to the employer; (3) he was
subjected to an adverse employment consequence; and (4) a
causal link exists between the protected activity and the
adverse employment consequence. Victor v. State, 4
A.3d 126, 141 (N.J. 2010). To assess causation, in addition
to looking at temporal proximity, the Court must consider
“with a careful eye . . . the specific facts and
circumstances encountered.” Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 279 n.5 (3d Cir. 2000).
plaintiff makes out a prima facie case, the burden
shifts to the defendant employer to provide a legitimate,
non-discriminatory reason for its employment decision.
McDonnell Douglas, 411 U.S. at 802-03. If the
employer meets its burden of articulating a legitimate,
nondiscriminatory reason for the adverse employment action,
the burden shifts back to the plaintiff to demonstrate that
the employer's proffered reason for the adverse
employment action was pretextual. Id. To establish
pretext under the summary judgment standard, a plaintiff must
either (1) offer evidence that “casts sufficient doubt
upon each of the legitimate reasons proffered by the
defendant so that a factfinder could reasonably conclude that
each reason was a fabrication, ” or (2) present
evidence sufficient to support an inference that
“discrimination was more likely than not a motivating
or determinative cause of the adverse employment
action.” Fuentes v. Perskie, 32 F.3d 759, 762
(3d Cir. 1994). To meet that burden, a plaintiff
“cannot simply show that the employer's decision
was wrong or mistaken.” Id. at 765.
a black plaintiff alleges hostile work environment racial
harassment under the LAD, he must demonstrate that the
defendant's ‘conduct (1) would not have occurred
but for the employee's [race]; and [the conduct] was (2)
severe or pervasive enough to make a (3) reasonable [African
American] believe that (4) the conditions of employment are
altered and the working environment is hostile or
abusive.'” Caver v. City of
Trenton, 420 F.3d 243, 262 (3d Cir. 2005) (citing
Taylor v. Metzger, 706 A.2d 685, 688-89 (N.J. 1998)
(quoting Lehmann v. Toys ‘R' Us, Inc., 626
A.2d 445, 453 (N.J.1993)) (modifications in original)).
“'[O]ffhanded comments, and isolated incidents
(unless extremely serious)' are not sufficient to sustain
a hostile work environment claim.” Caver, 420
F.3d at 262 (quoting Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998)). “Rather, the ‘conduct
must be extreme to amount to a change in the terms and
conditions of employment . . . .'” Id. In
determining whether the conduct at issue is sufficiently
extreme, the Court must consider the “totality of the
circumstances.” Andrews v. City of
Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990).
“The types of circumstances we consider ‘may
include 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.” Caver, 420 F.3d at 262-63
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
outlined above, Plaintiff bases his discrimination claim on
three incidents: (1) Adams' comment on the cost of
Plaintiff's new Jeep Wrangler; (2) Adams' comment on
the cost of Plaintiff's February 2015 10-day
Mediterranean vacation; and (3) Adams allegedly told another
employee, “I can't stand that nigger, I'm going
to get his black ass.” Plaintiff concedes that race was
never mentioned in any conversation he had with Adams. He
imputed race into the two comments Adams made to him because
“by the way he said it to me, it led me to believe that
a black person shouldn't be able to afford [it].”
(Pl. Dep., 18:6-8.)
to Plaintiff, sometime is 2015 Plaintiff drive his vehicle, a
brand new $40, 000 Jeep Wrangler, inside the station after
coming back from the supermarket with food and beverages for
a staff meeting. Plaintiff says Adams commented on how
expensive and nice it was, which Plaintiff interpreted as
So when I got out of the car he was like, “Wow,
that's a nice car. That car must be pretty
expensive.” He was like, “My car don't even
cost that much.” I didn't really know what to say
so I just said like “Okay, ” but in my mind I
didn't see the relevance. So what difference does it make
what kind of car I'm driving or how much it costs, you
know. But the way he said it to me, you know, it led me to
believe that a black person shouldn't be able to afford a
car like that.
(Pl. Dep., 17:25-18:8.)
February 2015, shortly after Plaintiff returned from a 10-day
overseas vacation with his wife, Adams made the second
comment which Plaintiff relies on for his harassment claim:
The comment about the vacation was in February of 2015,
and I know this for certain because it was a trip me and my
wife took for our 25th wedding anniversary that we
had been saving up for five years for so that we could go. .
. So when I came back from my trip he was like, “Oh, I
heard you went on a Mediterranean cruise. I heard you was in
Italy.” And stuff like that. He said, “That must
have been pretty expensive.” He said, “Even
I've never even been to Italy.” So then again,
I'm like why is this guy saying things to me about money
and finances, you know, like alluding to the fact that
I'm living a better life that I should be living. I mean,
why should I not be able to go on vacation wherever I want to
go? I been saving for it for view years so what difference
does it matter where I went and how much it costs.
(Pl. Dep., 18:18-19:10.)
asked if Adams said anything else during either of these two
incidents that led him to infer racial animus, Plaintiff
confirmed he did not:
Q: Have you told me everything about the comment he made
about your car and the comment he made about your vacation in
the very greatest detail that you can recall?
(Pl. Dep., 20:9-12.)
Q: So when he commented on your Jeep Wrangler and he
said, “Wow, that's an expensive car,
that's really nice, ” and when he said,
“Wow, that some great vacation you went on,
I've never been to Italy, that's something,
” you took those comments as racially
motivated, is that correct?
Q: Did he ever mention your race?
A: Not to me, personally.
Q: When made the comment about your Jeep
Wrangler and your vacation, can we agree that he
never mentioned your race?
(Pl. Dep., 22:15-23:3.)
asked if Plaintiff ever heard Adams comment on his race - or
on anyone's race - during the entire time they worked
together, Plaintiff confirmed he had not.
Q: In that time frame had you ever heard him make any
comment about your race? A: Again, not to my face.
(Pl. Dep., 23:14-16.)
Q: So there were a lot of African-American in the
station; is that correct?
Q: In the time frame that you worked with Pete
Adams you indicated that he never mentioned your
race before to you. Had you ever heard him
mention anyone's ...