United States District Court, D. New Jersey
MARK S. NORTON, Plaintiff,
PRAXAIR DISTRIBUTION, INC. and CHRISTINE THATCHER, Defendants.
E. THOMPSON, U.S.D.J.
matter comes before the Court on the Motion for Summary
Judgment brought by Defendants Praxair Distribution, Inc.
(“Praxair”) and Christine Thatcher (collectively,
“Defendants”). (ECF No. 24.) Plaintiff has not
opposed the Motion. The Court has decided the Motion after
considering the written submissions without oral argument
pursuant to Local Civil Rule 78.1(b). For the following
reasons, the Court grants Defendants' Motion for Summary
employment action arises from alleged age discrimination,
retaliation, and aiding and abetting age discrimination and
retaliation, all in violation of the New Jersey Law Against
Discrimination (the “NJLAD”), N.J.S.A. §
10:5-1 et seq. (Compl. ¶ 1, ECF No. 1.) Defendant
Praxair sells and distributes highly pressurized industrial
gases such as oxygen and nitrogen. (Defs.' Statement of
Undisputed Material Facts (“SUMF”) ¶ 1, ECF
No. 24-2.) GTS-Welco, a subsidiary of Defendant Praxair,
hired Plaintiff Mark S. Norton (“Plaintiff”) on
November 12, 2009; Defendant Thatcher approved his hiring.
(Id. ¶¶ 4, 7.) Defendant Praxair
subsequently acquired GTS-Welco, and Plaintiff became an
employee of Defendant Praxair in September 2014 when
Plaintiff was fifty-seven years old. (Id.
¶¶ 5-6.) During the entirety of his employment,
Plaintiff served as a distribution supervisor, coordinating
deliveries and supervising delivery drivers. (Id.
Plaintiff's Performance and Facts Relating to his
alleges that Defendant Praxair twice refused to promote him
and instead hired substantially younger candidates over him.
(Compl. ¶¶ 86-96.) Plaintiff contends that he
applied for the open “distribution manager”
position by advising his supervisor that he was interested in
the job, but Defendant Praxair contends that it “has no
record of Plaintiff ever formally applying for the
position.” (Defs.' SUMF ¶¶ 24-26.)
Defendant Praxair selected Paul Giocomini over Plaintiff in
2011 and Brett Khan over Plaintiff in July 2015 (id.
¶¶ 29-36); Plaintiff testified that “[he]
thought he was more qualified” but “could not . .
. recall” any evidence that the decision to hire
someone else over him was based on age (Norton Dep. 241:19-
23, Ex. 1, ECF No. 24-3).
2015, Frank Wojtaszek, the facility manager and
Plaintiff's supervisor at the time, identified numerous
deficiencies in Plaintiff's performance and decided to
present him with “Performance Improvement
Election/Performance Improvement Notification” whereby,
in accordance with Defendant Praxair's practice,
Plaintiff elected to participate in “performance
improvement monitoring” rather than severance.
(Defs.' SUMF ¶¶ 4, 37-42.) During the
proceeding months, Mr. Wojtaszek regularly met with Plaintiff
to discuss his performance, and Defendant Thatcher
“participated in some of the [performance improvement
monitoring] meetings at Plaintiff's request.”
(Id. ¶¶ 44-46.) Plaintiff testified that
he does not believe that the performance improvement
monitoring was based upon his age, that none of the
individuals involved in the performance improvement
monitoring meetings ever made inappropriate comments about
his age, and that he never complained to anyone that he felt
the performance improvement monitoring was administered due
to his age. (Id. ¶¶ 48-50; Norton Dep.
Fall of 2015, an anonymous individual submitted a complaint
via Defendant Praxair's “hotline” that
“at the instruction” of Mr. Wojtaszek, Plaintiff
had falsified timesheets and hours of service records to
cover up various Department of Transportation violations.
(Defs.' SUMF ¶¶ 51, 53; see also Ex.
16, ECF No. 24-3 (providing summary of incident report).) As
a company that transports flammable and combustible gases,
Defendant Praxair and its drivers are highly regulated by the
Department of Transportation. (Defs.' SUMF ¶ 15.)
For example, Defendant Praxair's drivers are not
permitted to be on duty for more than sixty hours in one week
or more than fourteen hours consecutively (the “Hours
Requirement”). (Id. ¶ 16.) As a
distribution supervisor, Plaintiff was responsible for
ensuring that the drivers complied with the Hours Requirement
by monitoring their hours maintained in the timekeeping
system and checking that system before assigning a delivery
to a driver. (Id. ¶¶ 18-23.) The anonymous
complaint spurred an internal investigation, which revealed
that Plaintiff had in fact falsified the time on a
driver's report and in the timekeeping system that would
have caused the driver to exceed the Hours Requirement
(id. ¶¶ 64-66 (detailing conduct));
Plaintiff testified that he indeed falsified the timekeeping,
but that he did so through the direction of his supervisor,
Mr. Wojtaszek (Norton Dep. 199:23-201:4). As a result of the
investigation, Defendant Praxair terminated Mr. Wojtaszek and
issued Plaintiff a written reprimand and warned him that
future violations could result in termination. (Defs.'
SUMF ¶¶ 67-71; see also Ex. 22, ECF No.
24-3 (written reprimand).)
Facts Relating to Plaintiff's Retaliation Claim
November 6, 2015, Defendant Praxair received two other
anonymous complaints submitted via its hotline. (Defs.'
SUMF ¶ 51.) Two employees separately complained that Mr.
Khan, Plaintiff's supervisor at the time, “made
inappropriate comments of a sexually/racially insensitive
nature.” (Id. ¶ 52.) Plaintiff admits
that he did not author either of these comments. (Norton Dep.
180:4-182:2.) Plaintiff instead contends that he submitted a
third complaint via the hotline in November 2015
(id. 172:15-173:11); Defendant Praxair, however,
claims that it has no record of this third complaint
(Defs.' SUMF ¶ 54). Rather, Defendant Praxair
believes that Plaintiff was merely one of several employees
interviewed in connection with Defendant Praxair's
internal investigation of Mr. Khan. (Id.)
Praxair investigated the complaints against Mr. Khan on
November 16-18, 2015. (Id. ¶ 55.) Defendant
Praxair ultimately suspended Mr. Khan for five days, issued
him a written reprimand, and required him to attend workplace
harassment training. (Id. ¶ 58.) Defendant
Praxair did not receive another complaint about Mr. Khan
(id. ¶ 59), and although Plaintiff felt
uncomfortable because Mr. Khan remained Plaintiff's
supervisor, Plaintiff testified that he did not have any
further issues with Mr. Khan (Norton Dep. 183:13-184:9,
236:2-5). Defendant Thatcher, who was not involved in the
investigation of Mr. Khan, testified that she was not aware
that Plaintiff had made a complaint against Mr. Khan.
(Thatcher Dep. 133:25- 134:12, 180:10-182:4, 188:24-189:18,
Ex. 2, ECF No. 24-3.)
Events Surrounding Plaintiff's Termination
December 19, 2015, Plaintiff was “on call” as the
weekend distribution supervisor, responsible for dispatching
drivers for emergency deliveries over the weekend.
(Defs.' SUMF ¶ 72.) After being notified of the need
for an emergency delivery, Plaintiff contacted numerous
drivers to determine whether anyone was available to make the
delivery. (Id. ¶ 76.) Plaintiff ultimately sent
Juan Rivera to make the delivery.
parties dispute whether Plaintiff knew-and thus
disregarded-the fact that Mr. Rivera was close to exceeding
the Hours Requirement before this delivery. Defendants
contend that Plaintiff knew at the time that Mr. Rivera was
close to exceeding the Hours Requirement but sent Mr. Rivera
to make the delivery notwithstanding. (Id.
¶¶ 76-83.) In support, Defendants offer two
statements made in the course of the internal investigation:
Mr. Rivera stated that he specifically told Plaintiff at the
time that he did not have enough hours to make the delivery
(id. ¶ 81; see also Ex. 25, ECF No.
24-3 (statements of Juan Rivera)), and Plaintiff himself
stated that “[he] was aware [at] the time that Juan
Rivera was very close or if not just over his [Hours
Requirement]” (Ex. 24, ECF No. 24-3 (statements of
Plaintiff); see also Defs.' SUMF ¶ 86;
Norton Dep. 231:23-232:19, 234:13-235:3).
on Plaintiff's admissions and in light of his recent
reprimand . . . for an almost identical violation, ”
Defendant Thatcher, on behalf of Defendant Praxair,
terminated Plaintiff's employment on January 1, 2016.
(Defs.' SUMF ¶¶ 88-89.) A few days after his
termination, Plaintiff discovered that Mr. Rivera did not
actually exceed the Hours Requirement on the day of the
incident and, as a result, attempted to retract his statement
made during the internal investigation; however, Defendant
Praxair maintained its decision to terminate Plaintiff's
employment because he had not checked the timekeeping system
at the time to know for certain whether the driver had
sufficient hours to make the delivery. (Id. ¶
28, 2017, Plaintiff filed this action in Superior Court of
New Jersey, Law Division, Monmouth County, and Defendant
removed to this Court on September 8, 2017. (Not. Rmv'l
¶ 1.) Plaintiff pleads five counts, all pursuant to the
NJLAD: (1) Defendant Praxair unlawfully terminated Plaintiff
because of his age (Compl. ¶¶ 75-85); (2) Defendant
Praxair unlawfully failed to promote Plaintiff because of his
age (id. ¶¶ 86-96); (3) Defendant Praxair
unlawfully retaliated against Plaintiff (id.
¶¶ 97-104); (4) Defendant Thatcher aided and
abetted age discrimination (id. ¶¶
105-13); and (5) Defendant Thatcher aided and abetted
unlawful retaliation (id. ¶¶ 114-22).
filed their Answer on December 1, 2017 (ECF No. 11) and
thereafter participated in discovery (see ECF Nos.
14, 19, 21). On January 10, 2019, the Court ordered that
dispositive motions shall be filed by January 31, 2019. (4th
Am. Scheduling Order at 1, ECF No. 23.) The Court also
indicated that any opposition to such a motion shall be filed
by February 8, 2019. (See Id. (setting returnable
date for February 22, 2019).)
January 31, 2019, Defendants filed the instant Motion for
Summary Judgment. On February 8, 2019, the day that his
opposition papers were due, Plaintiff requested an extension
of time (ECF No. 25); the Court extended his deadline to
February 22, 2019 (ECF No. 26). On February 21, 2019,
Plaintiff again requested an extension of time (ECF No. 27),
which the Court granted, extending his deadline to March 15,
2019 (ECF No. 28). On March 20, 2019, five days after his
opposition papers were due, Plaintiff requested another
extension to March 25, 2019 (ECF No. 29), which Defendants
opposed (ECF No. 30). Plaintiff failed to file his opposition
papers on March 25, but on April 3, 2019, the Court extended
Plaintiff's deadline to April 5, 2019. (ECF No. 32.) It
noted, however, that “[n]o submissions will be accepted
after that date.” (Id.) On April 8, 2019,
Defendants requested that this Court deem as unopposed
Defendants' Motion for Summary Judgment (ECF No. 33),
which the Court granted (ECF No. 34). Defendants' Motion
for Summary Judgment is currently before the Court.