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Norton v. Praxair Distribution, Inc.

United States District Court, D. New Jersey

April 10, 2019

MARK S. NORTON, Plaintiff,


          ANNE E. THOMPSON, U.S.D.J.


         This 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 Judgment.


         This 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. ¶¶ 7-8.)

         I. Plaintiff's Performance and Facts Relating to his Failure-to-Promote Claim

         Plaintiff 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).

         In June 2015, Frank Wojtaszek, the facility manager and Plaintiff's supervisor at the time, identified numerous deficiencies in Plaintiff's performance[1] 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. 149:3-8.)

         In the 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).)

         II. Facts Relating to Plaintiff's Retaliation Claim

         On 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.)

         Defendant 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.)

         III. Events Surrounding Plaintiff's Termination

         On 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.

         The 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).

         “Based 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. ¶ 90.)

         IV. Procedural History

         On July 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).

         Defendants 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).)

         On 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.


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