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Wilson v. M & M Management, Co.

United States District Court, D. New Jersey

June 27, 2019

AARON WILSON, Plaintiff,
v.
M & M MANAGEMENT CO. and RED WHITE AND BLUE THRIFT STORE, INC., [1] Defendants.

          GRAHAM FAVILLE BAIRD, LAW OFFICES ERIC A. SHORE, P.C., Attorney for Plaintiff Aaron Wilson.

          STEVEN GERBER, MARIA TAVANO, OLA AKACHE NUNEZ, SCHOEMAN UPDIKE KAUFMAN & GERBER LLP, Attorney for Defendant M & M Management Co.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

          This is an employment case where Plaintiff Aaron Wilson claims Defendant M & M Management, Co. took adverse employment actions against him based on his race and in retaliation for previous complaints he had made against one of Defendant's supervisors. Presently before the Court is Defendant's Motion for Summary Judgment. For the reasons expressed below, this Court will grant Defendant's Motion for Summary Judgment.

         BACKGROUND

         The Court takes its facts from the parties' statements of material facts not in dispute. The Court will note disputes where relevant.

         Defendant, M & M Management Company d/b/a Red, White & Blue Thrift Stores (“M&M”) operates a thrift store in West Berlin, New Jersey (the “West Berlin Store”). M&M employs a fleet of truck drivers to collect donated customers goods for resale. This is the only source of goods sold in M&M stores. As such, the trucking operation is a central part of M&M's business model. M&M has specific employment policies and procedures for its trucking division and prohibits unlawful discrimination and retaliation. This policy and various other procedures and prohibitions are contained in an employee handbook (the “Handbook”) that is provided to every employee.

         M&M hired Plaintiff as a driver at the West Berlin Store in October 2013. Plaintiff received a copy of the Handbook and signed an acknowledgement stating he had both received and read it. The Handbook, under a “Rules of Conduct” heading provides “some examples of conduct that will result in disciplinary action or termination of employment” and specifically states it does not intend this to be “an exhaustive list of all types of impermissible conduct and performance.” (Tucker Decl., Ex. A 23.) According to the Handbook, progressive discipline is preferred, but not required.

         Generally, Plaintiff's work as a driver involved receiving a route of scheduled pick-ups, making each stop, retrieving the goods from the donors, and then loading and unloading his truck. During his duties, Plaintiff was subject to multiple instances of discipline between February 19, 2014 and January 12, 2016. Plaintiff was written up for the following infractions:

• Leaving his truck running and unattended;
• Complaining to dispatch about his route and the size of items he was told to pick up and then missing a scheduled pick-up;
• Failing to follow instructions for picking up donations on his route; and
• Repeatedly calling into the main store line, asking for help finishing his route, and being insubordinate with a supervisor.[2]

         Plaintiff does not specifically deny the above bases for disciplinary action.

         Plaintiff denies the following bases for disciplinary action:

• Picking up a UPS delivery of Christmas toys from a donor's home instead of their donation;
• Jumping off the loading dock and hurting his knee instead of using the safer method he was trained to use;
• Disobeying protocol by taking his route sheet out of the dispatch office without permission or notice to one of the “Head Drivers”; and
• Calling into the main store line instead of texting into dispatch when he had finished a certain portion of his route.

         In opposing these bases for disciplinary action, Plaintiff cites his deposition where he stated the following:

• The December 15, 2014 warning concerning the mistaken pickup of Christmas toys from a donor's home did not occur and his signature does not appear on the warning, (Pl.'s Opp'n Br., Ex. B 99:19-101:14);
• The February 20, 2015 warning concerning his accident at the loading dock is incorrect: he did not jump, but stepped down while holding onto the loading dock, (Pl.'s Opp'n Br., Ex. B 105:5-106:19);
• The August 6, 2015 warning concerning taking his route sheet without permission is incorrect because Plaintiff could not have taken his route sheet without knowing which one was his - and that was only determined when they were handed out (Pl.'s Opp'n Br., Ex. B 103:10-104:13); and
• The October 2, 2015 warning concerning calling into dispatch rather than texting was incorrect because the texting mechanism was malfunctioning, preventing Plaintiff from updating dispatch other than by calling, (Pl.'s Opp'n Br., Ex. B 120:14-121:24).

         Plaintiff also generally asserts that some of these actions were taken in retaliation for his complaints or based on his race, as other employees who were not African-American were treated differently when it came to discipline. As is suggested by Plaintiff's above opposition, the parties also present facts concerning the nature of complaints made by Plaintiff.

         Plaintiff testified in his deposition that Assistant Store Manager Scott Fitzpatrick, a white male, called him a “fucking peon” sometime in 2014. On a separate occasion in 2014, Plaintiff also testified that Fitzpatrick “ran up” on him and he was forced to back up into a coat rack. Fitzpatrick stared him down as if he was going to hit him. It appears Plaintiff had difficulty articulating what is was about these incidents that suggested they were racially motivated. (Pl.'s Opp'n Br., Ex. B 58:20-61:4.) Although Plaintiff testified in his deposition that Fitzpatrick targeted African-American drivers with his inappropriate and unprofessional behavior, Plaintiff did not provide any specific examples nor did he state this was racially motivated. (Pl.'s Opp'n Br., Ex. B 59:20-61:4.) It appears the basis for this statement was that the majority of M&M drivers were African-American or Latino.

         After receiving this treatment at the hands of Fitzpatrick, Plaintiff complained to Store Manager Dennis Rodriguez. Rodriguez said he would intercede with Fitzpatrick on Plaintiff's behalf and that Plaintiff could bring any complaints he may have had to him. Plaintiff also called M&M's corporate office and complained about Fitzpatrick's conduct to National Supervisor Robert Tucker. Tucker later visited Plaintiff while he was out on his route. Tucker states in a declaration that Plaintiff never complained to him about Fitzpatrick's allegedly racially motivated behavior, just about not being able to eat on the loading dock while others were allowed to smoke. (Def.'s Mot. for Summ. J., Decl. of Robert Tucker ¶19.) Plaintiff stated in his deposition that he did complain to Tucker about Fitzpatrick's behavior and said to him he thought it was racially motivated. (Pl.'s Opp'n, Ex. B 126:16-127:21.)

         Finally, Plaintiff called in and complained to M&M's corporate office on January 13, 2016 to dispute his January 12, 2016 suspension for excessive calls to dispatch and insubordination to Rodriguez. The substance of Plaintiff's complaint to corporate on this occasion was not that the suspension was racially motivated, but that it was incorrect.

         On January 14, 2016, Plaintiff was terminated, according to Defendant, for excessive infractions. By Defendant's count, Plaintiff had received “eight write-ups, including two suspensions, in less than two years . . . issued by four distinct supervisors.” (Def.'s SOMF ¶ 29.) According to Tucker, once he received Plaintiff's January 13, 2016 complaint and reviewed Plaintiff's disciplinary history, he decided along with CEO Bruce Vincent to terminate Plaintiff and instructed Rodriguez to do so. (Def.'s Mot. for Summ. J., Decl. of Robert Tucker ¶¶ 22-23.) Plaintiff asserts he was terminated because of his previous “race discrimination complaint to Bob Tucker.” (Pl.'s Opp'n SOMF ¶ 29.)

         On November 14, 2017, Plaintiff filed this matter before the Court. Plaintiff's Complaint has two counts, one under Title VII for unlawful employment discrimination on the basis of race and retaliation and one under the New Jersey Law Against Discrimination (“NJLAD”) for retaliation and creation of a hostile work environment.

         On October 26, 2018 Defendant filed a Motion for Summary Judgment. Plaintiff filed his opposition on November 19, 2018 and Defendant filed a reply on November 29, 2018. Defendant's Motion for Summary Judgment is therefore ripe for adjudication.

         ANALYSIS

         A. Subject Matter Jurisdiction

         This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1367.

         B. Motion for Summary Judgment Standard

         Summary judgment is appropriate where the Court is satisfied that “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any,' . . . demonstrate the absence of a genuine issue of 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, 322-23 (1986) (citing Fed.R.Civ.P. 56).

         An 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. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (citing Anderson, 477 U.S. at 255).

         Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.”); see Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, ‘the burden on the moving party may be discharged by “showing”-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof.” (citing Celotex, 477 U.S. at 325)).

         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. Celotex, 477 U.S. at 324. A “party opposing summary judgment ‘may not rest upon the mere allegations or denials of the . . . pleading[s].'” Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). For “the non-moving party[] to prevail, [that party] must ‘make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial.'” Cooper v. Sniezek, 418 Fed.Appx. 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at 322). 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 257.

         C. Defendant's Motion for Summary Judgment

         Defendant's Motion for Summary Judgment asserts Plaintiff's three claims cannot survive summary judgment. First, Defendant argues Plaintiff's disparate treatment claim fails because Plaintiff (1) cannot state a prima facie case or, in the alternative, (2) cannot establish pretext. Second, Defendant argues Plaintiff's hostile work environment claim also fails as a matter of law. Third, Defendant argues Plaintiff's retaliation claim fails as a matter of law. Plaintiff opposes Defendant's Motion for Summary Judgment on all three claims. This Court will address each in turn.

         Before doing so, this Court notes Plaintiff's claims are analyzed in this case under the McDonnell Douglas burden-shifting framework. First, a “plaintiff must establish a prima facie case of discrimination.” Parikh v. UPS, 491 Fed.Appx. 303, 307 (3d Cir. 2012) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Once a plaintiff has established his prima facie case, the burden shifts to the defendant to provide a legitimate, non-discriminatory reason for the adverse employment action. Under the law,

[t]he employer satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision . . . . The employer need not prove that the tendered reason actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff.

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (emphasis in original) (citations omitted).

         If the defendant satisfies this burden of production, a plaintiff must then show that the reason produced was mere pretext for discrimination. To show pretext, the relevant standard requires a plaintiff to:

“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.'” Fuentes, 32 F.3d at 765. In simpler terms, he must show, not merely that the employer's proffered reason was wrong, but that it was so plainly wrong that it cannot have been the employer's real reason.

Keller v. Orix Credit All., 130 F.3d 1101, 1109 (3d Cir. 1997).

         In other words, as the Third Circuit has held:

to defeat summary judgment when the defendant answers the plaintiff's prima facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason ...

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