DORVIL v. BURLINGTON COAT FACTORY WAREHOUSE CORPORATION et al

Filing 38

OPINION. Signed by Judge Joseph E. Irenas on 10/14/2011. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAMES DORVIL,

HONORABLE JOSEPH E. IRENAS

Plaintiff,

CIVIL ACTION NO. 09-5778
(JEI/KWM)

v.
BURLINGTON COAT FACTORY
WAREHOUSE CORP. and MICHAEL
FAGAN,

OPINION

Defendants.

APPEARANCES:
KARPF & KARPF, P.C.
By: Ari R. Karpf
Christine Elaine Burke
3331 Street Road, Suite 128
Two Greenwood Square
Bensalem, PA 19020
Counsel for Plaintiff,
PUTNEY TWOMBLY HALL & HIRSON LLP
By: Mary Ellen Donnelly
Randi B. Feldheim
521 Fifth Avenue
New York, NY 10175
Counsel for Defendants,
IRENAS, Senior District Judge:
This matter comes before the Court on Defendants’ Motion for
Summary Judgment.

(Dkt. No. 25)

For the reasons set forth

below, the Motion will be denied.

I.
1

The facts, and inferences drawn from those facts, are
largely disputed in this case.

For the purposes of this Motion,

the Court resolves those disputes in favor of Plaintiff James
Dorvil.1
Dorvil is a Haitian immigrant who speaks with a thick
accent.

(Pl.’s L.Civ.R. 56.1(a) Statement at ¶¶ 1-3)2

In 1998,

Dorvil started to work for Defendant Burlington Coat Factory
(“BCF”).

(Id. at ¶ 4)

Over the next several years, Dorvil

climbed the corporate ladder and became the Manager of the
Merchandise Accounting Department.

(Id. at ¶¶ 7-10)

In this

role, Dorvil oversaw approximately 170 employees and reported
directly to James Jacob.

(Id. at ¶¶ 6, 78)

In 2006 Bain Capital Partners purchased BCF.
L.Civ.R. 56.1(a) Statement at ¶ 28)

(Defs.’

In September 2008, Defendant

Michael Fagan, a white male, started work as Vice President of
Retail Control.

(Pl.’s L.Civ.R. 56.1(a) Statement at ¶ 17)

Fagan supervised the entire Merchandise Accounting Department
including Jacob and Dorvil.

(Id. at ¶¶

18-20)

Over the course of the next year, Fagan and Dorvil’s
relationship became strained.

At first, Fagan could not always

1

In deciding a motion for summary judgment, the Court must construe the
facts and inferences in a light most favorable to the non-moving party.
Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).
2

This citation refers to the parties’ obligation to write statements
of material facts for summary judgment motions pursuant to Local Civil Rule
56.1(a).

2

understand Dorvil’s accent.

(Id. at ¶ 26)

However, Fagan

eventually became accustomed to Dorvil’s accent and more easily
understood.

(Id. at ¶ 27)

Nevertheless, on approximately a

weekly basis, Fagan teased Dorvil by pretending not to
understand, often in front of employees Dorvil supervised.
at ¶¶ 27-29)

(Id.

On several occasions, Fagan would humiliate Dorvil

by calling other employees over to interpret and sarcastically
inquire whether Dorvil was speaking French or English.
¶¶ 27-29)

(Id. at

This behavior undermined Dorvil’s authority and

ability to effectively supervise his employees.
Fagan’s actions were not limited to off-handed comments
about Dorvil’s accent.

Fagan would refer to Dorvil as the

“Haitian Black” or the “Creole”.

(Id. at ¶ 30)

As the

relationship further deteriorated, Fagan would refer to Dorvil
with hostile gestures.

(Id. at ¶ 25)

Dorvil emphasizes two particular incidents that are
demonstrative of an overall discriminatory trend.

First, in

August of 2009, several police officers walked into a restaurant
while Dorvil, Fagan and Expense Payables Manager Patricia
Heussner were at a business lunch.

(Id. at ¶ 32)

Fagan

exclaimed, “hide James, they might be looking for you.”
Br. in Opp. at Ex. J)
skin color.

(Pl.’s

This was an obvious reference to Dorvil’s

Although Fagan explains this incident as an off-

color joke that was relevant in the context of a previous
3

conversation, neither Dorvil nor Heussner laughed or found the
comment appropriate.

(Pl.’s L.Civ.R. 56.1(a) Statement at ¶ 32;

Pl.’s Br. in Opp. at Ex. J)
The second incident occurred in October 2009 when Fagan made
another racially charged “joke” in front of several coworkers at
a business meeting.

(Pl.’s L.Civ.R. 56.1(a) Statement at ¶ 33)

Fagan declared that if something went missing in the crowded
room, the first person that people would accuse would be the
black guy and pointed to Dorvil.

(Id.)

Fagan justified this

comment as a teachable moment in not making assumptions.

(Defs.’

Br. at 6)
Other discriminatory events Dorvil alleges did not
explicitly involve race, but Dorvil argues had a discriminatory
motive.

(Pl.’s L.Civ.R. 56.1(a) Statement at ¶¶ 33-41)

For

example, Fagan neglected to invite Dorvil to meetings he was
required to attend and to which all other managers received
invitations.

(Id. at ¶ 36)

Furthermore, Fagan directly assigned

work to Dorvil’s employees without informing Dorvil.3

(Id. at ¶

37)
Before Fagan started work, Dorvil had been promoted several
times and received extremely positive annual reviews.
11-12)

(Id. at ¶¶

In fact, Steven Milstein, a former owner of BCF,

3

Dorvil also asserts that Fagan revoked Dorvil’s access to the company
car and intimidated Dorvil to stop submitting expenses for reimbursement to
which he was otherwise entitled. (Id. at ¶¶ 40-41)

4

commended Dorvil for his work performance.

(Pl.’s Br. in Opp. at

Ex. M) Despite these prior commendations, Dorvil asserts that,
without prior warning, and after recently having received a
positive annual review from Jacob under Fagan’s supervision,
Fagan placed Dorvil on a Performance Improvement Plan (“PIP”) on
October 6, 2009.4

(Pl.’s L.Civ.R. 56.1(a) Statement at ¶¶ 53-56)

The PIP was a disciplinary measure, which gave Dorvil a month
long probationary period to improve his work performance or face
termination.

(Id. at ¶¶ 55-58)

performance during the PIP.

Fagan was to monitor Dorvil’s

(Id. at ¶ 59)

In response, Dorvil filed a formal written complaint of
racial discrimination two days later on October 8, 2009.
¶ 60)

(Id. at

Dorvil cited the specific instances of racial

discrimination in August and October of 2009 in addition to an
allegation that Fagan erroneously blamed Dorvil for a twelve
million dollar accounting mistake.

(Pl.’s Br. in Opp. at Ex. H)

Dorvil further feared that Fagan would not be impartial in
implementing the PIP considering Fagan’s prior discriminatory
behavior.

(Pl.’s L.Civ.R. 56.1(a) Statement at ¶ 63)

On November 9, 2009, Fagan and Human Resources Director
Judith Mascio decided to terminate Dorvil.

(Id. at ¶¶ 70-73)

Defendants allege that shortly after terminating Dorvil,

4

Defendants contend that Dorvil had many warnings of his poor
performance, but failed to improve. (See Defs.’ Br. at 17) Dorvil argues
that he had never received anything but commendation from his superiors.

5

Defendants discovered several performance errors that are now the
focus of an action brought in New York County Supreme Court.
(Defs.’ Reply Br. at 4-5)

Defendants assert that had those

performance errors been found earlier, Dorvil would have been
terminated immediately.

(Id. at 5)

As of this Opinion, the New

York action is still pending and there has been no finding of
liability.

II.
“[S]ummary judgment is proper ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show 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, 322 (1986) (quoting Fed. R. Civ. P.
56(c)).

In deciding a motion for summary judgment, the Court

must construe the facts and inferences in a light most favorable
to the non-moving party.

Pollock v. Am. Tel. & Tel. Long Lines,

794 F.2d 860, 864 (3d Cir. 1986).
“‘With respect to an issue on which the non-moving party
bears the burden of proof, 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.’”

Conoshenti v. Public Serv. Elec. &
6

Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex, 477
U.S. at 323).

The role of the Court is not “to weigh the

evidence and determine the truth of the matter, but to determine
whether there is a genuine issue for trial.”

Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986).

III.
Plaintiff filed his six count Complaint on November 12,
2009.

The claims can be grouped into four categories.

First,

Plaintiff alleges a claim for racial discrimination under both 42
U.S.C. § 1981 and the New Jersey Law Against Discrimination
(“LAD”), N.J.S.A. 10:5-1 et seq.

Second, Plaintiff alleges

retaliation under both § 1981 and the LAD.

Third, Plaintiff

alleges a § 1981 hostile work environment claim.

Finally,

Plaintiff alleges a violation of the New Jersey Wage Payment Law
(“WPL”) for failing to pay Dorvil for unused vacation time.
N.J.S.A. 34:11-1 et seq.

A.
The burden shifting analysis of Title VII applies to claims
for racial discrimination and retaliation brought under § 1981
and the LAD.5

5

See Schurr v. Resorts Intern. Hotel, Inc., 196

The elements are also analyzed identically.

99.

7

Schurr, 196, F.3d at 498-

F.3d 486, 498-99 (3d Cir. 1999).

First, Plaintiff must establish

a prima facie case by a preponderance of the evidence.
Douglas Corp. V. Green, 411 U.S. 792, 802 (1973).

McDonnell

“The burden

then must shift to the employer to articulate some legitimate,
nondiscriminatory reason for the [adverse employment action].”6
Id.

If the defendant adequately rebuts the evidence then the

plaintiff must establish by a preponderance of the evidence that
the nondiscriminatory reason was merely a pretext “to coverup for
a racially discriminatory decision.”

Id. at 804.

1.
A prima facie case for racial discrimination requires
Plaintiff to show that: “(1) the plaintiff belongs to a protected
class; (2) he/she was qualified for the position; (3) he/she was
subject to an adverse employment action despite being qualified;
and (4) under circumstances that raise an inference of
discriminatory action.”
789, 797.

Sarullo v. U.S. Postal Service, 352 F.3d

It is not intended to be difficult to establish a

prima facie case.

See Sempier v. Johnson & Higgins, 45 F.3d 724,

728 (3d Cir. 1995).
Here, Defendants do not dispute that Dorvil belongs to a

6

“It is sufficient if the defendant’s evidence raises a genuine issue
of fact as to whether it discriminated against the plaintiff.” Texas Dept. Of
Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). This overrides the
usual factual presumption in favor of the non-moving party for the purposes of
a defendant’s summary judgment motion.

8

protected class.
Under the second element, Defendants argue that Plaintiff
did not perform his job satisfactorily.

However, this argument

does not directly speak to Dorvil’s qualifications, but rather
his performance.7

Therefore, the Court will address this

argument in regards to showing a nondiscriminatory reason for
terminating Dorvil.

As for the merits of Dorvil’s

qualifications, Dorvil had nearly a decade of experience with
nothing but positive reviews until the PIP.

Dorvil has made a

prima facie showing that he was qualified for the position.
Defendants lump the last two elements together arguing that
Dorvil cannot demonstrate that the adverse employment action gave
rise to an inference of discrimination.

The Court disagrees.

The two racially discriminatory comments of August and October
2009 coupled with Fagan’s weekly derogatory comments towards
Dorvil’s accent satisfy these elements.

See Lopez v. Indiana-

Kentucky Elec. Corp., 2006 WL 3247892, *13 (S.D. Ind. 2006)
(holding that hostility towards a foreign accent is
circumstantial evidence relevant to a § 1981 discrimination
claim); see also Saint Francis College v. Al-Khazraji, 481 U.S.
604, 614 (1987) (Brennan J., concurring).

7

In addition,

One of Defendants’ principal arguments is that new BCF ownership and
management required better performance from existing BCF employees. Because
Dorvil could not perform at this higher standard, Defendants terminated
Dorvil.

9

Defendants replaced Dorvil with a Caucasian woman, which raises
an inference of discrimination.

See Johnson v. Keebler-Sinshine

Biscuits, Inc., 214 Fed.Appx. 239, 242 (3d Cir. 2007) (finding
this element satisfied upon a showing that a plaintiff was
replaced by someone outside of his protected class).

Plaintiff

has carried his burden in establishing a prima facie case.
Defendants must now rebut the presumption of discrimination
that Plaintiff has created.

Defendants argue that Plaintiff did

not comply with the terms of the PIP or improve his job
performance despite numerous warnings.
choice but to terminate Plaintiff.

Defendants thus had no

This legitimate

nondiscriminatory reason rebuts the presumption of
discrimination.
To establish pretext and avoid summary judgment, Plaintiff
need only discredit Defendants’ proffered nondiscriminatory
reasons.

See Sempier, 45 F.3d 724, 731; Fuentes v. Perskie, 32

F.3d 759, 764 (3d Cir. 1994).

Here, Dorvil contends that

Defendants had never disciplined him before issuing the PIP.
(See Pl.’s L.Civ.R. 56.1(a) Statement at ¶ 55)

Therefore, a

reasonable inference could be that the PIP, of which Fagan was a
proponent, was implemented not because Dorvil was actually
performing badly, but due to racial animus.

Fagan had previously

referred to Dorvil as the Hatian Black and the Creole, made
inappropriate racial comments, frequently belittled Dorvil for

10

his accent, and undermined Dorvil’s ability to effectively
supervise his employees.

A reasonable jury could conclude that

Fagan terminated Dorvil for discriminatory reasons despite
Dorvil’s satisfactory work performance.
Because Dorvil can show pretext, summary judgment is
inappropriate and the Motion will be denied with respect to the
discrimination claims.

2.
The Court must apply the same burden shifting analysis in a
retaliation claim brought under § 1981 and the LAD.

To establish

a prima facie case Plaintiff must show by a preponderance of the
evidence: “(1) that he engaged in a protected activity; (2) that
he suffered an adverse employment action; and (3) that there was
a causal connection between the protected activity and the
adverse employment action.”

Hutchins v. United Parcel Service,

Inc., 197 Fed.Appx. 152, 156 (3d Cir. 2006) (quoting Cardenas v.
Massey, 269 F.3d 251, 263 (3d Cir. 2001)).
First, Defendants argue that Plaintiff cannot establish that
he engaged in protected activity because Dorvil’s complaint of
October 8, 2009 was not made reasonably and in good faith.

In

support of this argument, Defendants note that Plaintiff did not
complain until after Defendants instituted the PIP.

However,

this is unsurprising considering Plaintiff contends that he never

11

suffered any disciplinary action before the PIP.

Plaintiff could

have decided to endure the racial discrimination in silence to
placate his superior.

When it appeared that his job was in

jeopardy due to unexpected disciplinary actions, Plaintiff could
have decided to lodge a complaint.

Because the timing of the

complaint does not indicate a lack of good faith and
reasonableness, the first element is satisfied.
Defendants do not challenge the second element.
Third, Defendants argue that there is no causal connection
between the protected activity and Dorvil’s termination.
Although a plaintiff may show causation in many ways, two are
particularly significant: (1) timing, and (2) a pattern of
antagonism.

See Kachmar v. SubGuard Data Systems, Inc., 109 F.3d

173, 177 (3d Cir. 1997).
In this case, one month passed between the complaint and
Dorvil’s termination.

Although one month is not conclusive, it

is certainly suggestive of retaliation.

In conjunction with

other evidence of overall antagonism, however, the causal link is
strong enough to establish a prima facie case.8

For example,

Fagan terminated only Dorvil for alleged performance issues for

8

Indeed, a reasonable jury could disbelieve Defendants assertions that
Dorvil had any performance issues considering Dorvil’s long unblemished
history at BCF. Taking the record as a whole, Fagan could have terminated
Dorvil, using the PIP as a mere pretext. See Farrell v. Planters Lifesavers
Co., 206 F.3d 271, 283 (3d Cir. 2000) (“[T]he court can consider
circumstantial evidence and draw inferences in favor of the non-moving party
in reaching [a causation] determination on summary judgment.”).

12

which several managers had responsibility.9
56.1(a) Statement at ¶¶ 82-87)

(See Pl.’s L.Civ.R.

Moreover, Dorvil’s Caucasian

replacement has made the same errors alleged against Dorvil yet
the replacement has not been put on a PIP or otherwise
disciplined.

(Id. at ¶ 85)

Having established a prima facie case, Defendants must rebut
the presumption of retaliation with a nondiscriminatory reason
for terminating Dorvil.

Defendants allege that after the month

long PIP, Plaintiff had not improved his work performance.
Therefore, Defendants terminated Plaintiff for unsatisfactorily
performing his job, not due to protected activity.

This reason

suffices to shift the burden back to Plaintiff.
Plaintiff must now show pretext by either identifying “(1)
evidence that undermines the credibility of the employer’s
proffered reasons, or (2) evidence of retaliatory animus.”
Waggaman v. Villanova University, 2008 WL 4091015, *20 (E.D.Pa.
2008).

Plaintiff’s mere assertions that the decision to

terminate was erroneous does not establish pretext.

Rather,

Plaintiff must provide evidence that a reasonable fact finder
could disbelieve the employer’s evidence.

9

Id.

Pretext can be

Indeed, some of the performance issues Defendants allege were a direct
result of Fagan’s discriminatory behavior such as not being invited to
important meetings and undermining Dorvil’s supervisory authority in front of
his employees. If the PIP was a result of these “performance issues,” and
Dorvil’s formal complaint was the result of the PIP, then there must also be a
causal connection between the PIP, the formal complaint and Dorvil’s
termination.

13

shown here largely for the same reasons as for the claim of
discrimination.

A reasonable fact finder could disbelieve that

the PIP was truly motivated by Dorvil’s poor performance
considering the wealth of evidence indicating prior satisfactory
performance.

The jury could instead conclude that Fagan, who on

multiple occasions made discriminatory comments towards Dorvil,
instituted the PIP for discriminatory reasons, and when Dorvil
complained, Fagan used the PIP as a pretext to terminate Dorvil.
Accordingly, the Motion will be denied because Dorvil can
show pretext.

B.
Hostile work environment claims do not use the burden
shifting analysis above.

Instead, to establish a claim,

Plaintiff must show that: (1) Plaintiff suffered intentional
discrimination due to his status in a protected class; (2) the
discrimination was pervasive and regular; (3) the discrimination
detrimentally affected him; (4) the discrimination would have
detrimentally a reasonable person in the same situation; (5) a
basis for employer liability.

West v. Philadelphia Elec. Co., 45

F.3d 744, 753 (3d Cir. 1995).

The Court must analyze the

totality of the circumstances, not the occurrence of any one
incident.

Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 715

(3d Cir. 2006).

14

Defendants only challenge the second element - whether the
discrimination was pervasive and regular.

Defendants argue that

Fagan’s two isolated August and October 2009 comments are not
severe or pervasive enough to be actionable.

However, this

argument fails to account for Fagan’s weekly belittling comments
regarding Dorvil’s accent.

A reasonable jury could find that

these comments in conjunction with Fagan failing to invite Dorvil
to meetings, revoking Dorvil’s company car privileges and
constantly undermining Dorvil’s authority was pervasive and
regular discrimination.10

Although no one incident may have been

enough, all of the circumstances together indicate pervasive and
regular discrimination.
Therefore, the Motion will be denied with respect to the
hostile work environment claim.

C.
Defendants urge this Court to dismiss Plaintiff’s WPL claim
because Plaintiff failed to address Defendants’ arguments in its
brief.

Defendants argued that Plaintiff would not be entitled to

unused vacation time because he was terminated for poor
performance.11

However, as the discussion indicates above,

10

While a jury may conclude that Fagan took these actions simply
because he did not get along with Dorvil, for the purposes of summary
judgment, the Court must infer that racial animus motivated these actions.
11

Defendants argue that the terms of the benefits agreement would be
binding.

15

Defendants have not yet established that Plaintiff was terminated
for poor performance.

Indeed, a reasonable fact finder could

determine that Defendants wrongfully terminated Plaintiff on the
basis of race, which Defendants do not dispute would entitle
Plaintiff to recover.

Accordingly, Defendants’ Motion will be

denied with respect to the WPL claim.

IV.
For the foregoing reasons Defendants’ Motion for Summary
Judgment is denied.

Dated: 10/14/11
/s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.

16