INCORVATI et al v. BEST BUY COMPANY, INC. et al
Filing
61
OPINION. Signed by Judge Robert B. Kugler on 6/27/2013. (TH, )
NOT FOR PUBLICATION
(Document No. 46)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
ANDREW J. INCORVATI,
:
:
Plaintiff,
:
:
v.
:
:
:
BEST BUY COMPANY, INC.,
:
BEST BUY STORES, L.P.,
:
:
Defendants. :
___________________________________ :
Civil No. 10-1939 (RBK/KMW)
OPINION
KUGLER, United States District Judge:
This matter arises out of Plaintiff Andrew Incorvati’s (“Plaintiff”) claims of Family and
Medical Leave Act (“FMLA”) retaliation and of age discrimination by his former employer, Best
Buy (“Defendant”). Currently before the Court is Defendant’s motion for summary judgment
(Doc. No. 41). For the reasons stated herein, the Court finds that Plaintiff has failed to offer
evidence in support of his FMLA claim that would create a genuine dispute of material fact for
trial. On the other hand, the Court finds that just enough evidence exists to sustain Plaintiff’s age
discrimination claim. Accordingly, the Court will grant in part and deny in part Defendant’s
motion.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY 1
1
When considering a defendant’s motion for summary judgment, the Court views the facts underlying the claims in
the light most favorable to the plaintiff. See Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998
F.2d 1224, 1230 (3d Cir. 1993).
1
Plaintiff began his employment with Defendant in January 2005, working out of the
company’s Elkridge, Maryland location. Def.’s SUMF ¶ 10. 2 In March 2006, he was promoted
to “in-home” television team lead in Defendant’s Perth Amboy, New Jersey Service Center. Id.
¶ 11. In this capacity, Plaintiff, using a company-provided vehicle, traveled to Defendant’s
customer’s homes to diagnose and repair televisions. Id.
About two years later, in July 2008, Plaintiff accepted a position as a Service Center
Television Team Lead. Plaintiff still made occasional trips to customers’ homes, but spent the
vast majority of his time supervising employees at the service center and engaging in other
technical aspects of television repair. Pl.’s Dep. 72-75. Upon starting in this new position,
Plaintiff served as Television Team co-Lead with his co-worker Lisa Scorse. Def.’s SUMF ¶ 18.
As co-Leads, Plaintiff focused on the technical aspects of the job, while Ms. Scorse handled the
position’s supervisory and administrative aspects. Id. ¶ 20. Both Plaintiff’s and Ms. Scorse’s
direct superior was Service Center Tech Manager Hassan Ayoubi. Id. ¶ 19.
On November 9, 2008, Ms. Scorse was transferred to another department within the
Company, leaving Plaintiff as the sole Television Team Lead. Then, on December 20, 2008
Plaintiff suffered a heart attack. Id. ¶ 24. Defendant granted his request for leave under the
Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. Id., Exh. L. During Plaintiff’s absence
from work, Defendant moved Mark Bahadur, who was at the time the Team Lead for appliances,
to serve as Television Team Lead. Id. ¶ 26. Mr. Bahadur is seventeen years younger than
Plaintiff. See Pl.’s Opp. Br. 3
Plaintiff’s leave lasted until January 19, 2009, at which point he returned to his position
as Television Team Lead. Because the Service Center was particularly busy in the post-holiday
2
Any references in this Opinion to Defendant’s Statement of Undisputed Material Facts (“SUMF”) are limited to
those assertions to which Plaintiff has specifically admitted.
2
season, Mr. Bahadur remained as a Television Team co-Lead. 3 Dep. of Hassan Ayoubi 21.
Although both men technically held the same position, however, Plaintiff felt upon his return that
his role in the Service Center had been diminished. See Pl.’s Dep. 181. For example, he no
longer had access to a company vehicle, EZ Pass, and fuel card. Id. at 160. In addition, at
certain times Plaintiff would attempt to set the television technician team’s goals and objectives,
but Mr. Bahadur, with the apparent help of Mr. Ayoubi, would countermand these orders. Id. at
174.
Notwithstanding these feelings of marginalization, Plaintiff still performed many of the
same tasks as he had before taking leave, including providing guidance to the service
technicians, attending to matters in the stockroom, and consulting on specific television repair
jobs. Id. at 182. In addition, he conducted periodic reviews for individual technicians, and, as
necessary, disciplined subordinates for violating Defendant’s workplace policies. Id. at 184-85.
Still, Plaintiff reported that on at least two occasions, he asked his technicians to perform certain
tasks, and those tasks went unfulfilled. Id. at 160-62.
In the weeks following Plaintiff’s return, it became clear that Plaintiff and Mr. Bahadur
did not get along well. Def.’s SUMF ¶ 32. For instance, Mr. Bahadur often joked about
Plaintiff’s age and health. Pl.’s Dep. at 169. On one occasion, Mr. Bahadur printed out and
handed to Plaintiff a picture of a “Hoveround” motorized wheelchair with the caption, “you
3
The record provided to the Court is unclear as to exactly what title Mr. Bahadur held during the relevant times. It
appears undisputed that Mr. Bahadur became Television Team Lead during the time Plaintiff was away on medical
leave. Pl.’s Dep. 98-99; Ayoubi Dep. 21. It is likewise clear that Mr. Bahadur remained in the Television Team
Lead position along with Plaintiff after Plaintiff’s return in January 2009. Pl.’s Dep. 99-100; Ayoubi Dep. 21.
During this period, from January 2009 until Plaintiff’s termination in April 2009, both men acted as Television
Team Co-leads, with neither having supervisory powers over the other. Pl.’s Dep. 99-100. However, Hassan
Ayoubi, Plaintiff’s manager in the Service Center did answer “yes,” when asked the question, “[Mark Bahadur]
wasn’t a team leader until [Plaintiff] was terminated, correct?”. Ayoubi Dep. 111. Likewise, he stated that, “once
Mr. Incorvati left, Mark [Bahadur] took over his position.” Id. at 27. Finally, he answered yes to the question,
“Once Mr. Incorvati was terminated, you moved Bahadur to the TV lead tech . . ., correct?”. Id. at 107. Thus, there
is evidence suggesting that Plaintiff was replaced by Mr. Bahadur.
3
could use one of these.” Pl.’s Dep. at 169. When Plaintiff complained about this action to his
superior Mr. Ayoubi, Mr. Ayoubi chuckled. Id. at 78-80. In addition, there were reports that
Plaintiff had treated his subordinate technicians poorly on several occasions, prompting
Plaintiff’s superiors Mr. Ayoubi and a Mr. Fred Comer, the manager of the Service Center, to
meet with him regarding his workplace conduct. Id. ¶¶ 35-39. Consequently, Mr. Ayoubi
contacted Accenture, a company which provided third-party Human Resources services for
Defendant, and, after recounting some of Plaintiff’s inappropriate conduct, recommended that he
be placed on a Final Warning. On March 24, 2009, after meeting with Mr. Ayoubi and Mr.
Comer, Plaintiff was placed on a Final Warning for “ [t]he creation of a disrespectful and
demeaning work environment with the usage of inappropriate comments and corresponding
behaviors to employees,” including the use of profanity directed at employees. Id. at Exh. R
(Plaintiff’s Performance Counseling Record). Plaintiff understood a Final Warning to mean that
another similar workplace conduct violation would result in his employment being terminated.
Pl.’s Dep. at 113.
On April 2, 2009, as part of a yearly review, Plaintiff self-rated his respect for the values
of showing “Respect, Humility, and Integrity,” on a scale of 1 to 5 with 1 being the lowest rating,
as a 1. Def.’s SUMF ¶¶ 46-47. On that same day, Mr. Ayoubi came across certain printed-out
emails between Plaintiff and his one-time Television Team co-Lead, Ms. Scorse. These emails
contained vulgar language insulting Plaintiff’s new co-lead, Mr. Bahadur. Def.’s SUMF ¶¶ 4953. Mr. Ayoubi passed the emails on to his managers, who in turn contacted Accenture Human
resources for a discipline recommendation as to both employees. Def.’s SUMF, Exh. W
(Accenture Siebel Notes). Mr. Ayoubi recommended to Mr. Comer that Plaintiff be terminated.
Ayoubi Dep. 30-31. After conferring with Accenture, on April 14, 2009, Mr. Comer and other
4
senior managers in the Service Department made the decision to terminate both Plaintiff and Ms.
Scorse. Id. ¶ 59. Specifically, Plaintiff was found to have violated Defendant’s workplace
policies requiring him to “(a) show respect, humility and integrity; (b) . . . not misuse electronic
data; and (c) not engage in any other behavior not consistent with Company values or that
negatively impacts the work environment at Best Buy.” Id. ¶ 60. With Plaintiff’s employment
terminated, Mr. Bahadur became the sole Television Team Lead for Defendant’s Perth Amboy,
NJ Service Center.
On April 16, 2010, Plaintiff filed suit in this Court (Doc. No. 1). 4 Shortly thereafter,
Defendant filed a motion to dismiss the Complaint for failure to state a claim upon which relief
could be granted (Doc. No. 4). The Court granted the motion in part, dismissing all but two of
Plaintiff’s claims for relief. Plaintiff’s first remaining claim alleges that Defendant discriminated
against him because of his decision after his heart attack to take unpaid leave pursuant to the
federal Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. Compl., First Count.
Specifically, Plaintiff alleges that his perceived marginalization as Television Team co-Lead, as
well as the eventual termination of his employment in April 2009, were based, “in determinative
part, upon Plaintiff’s exercise of his rights provided by the FMLA.” Id. The other remaining
count alleges that Defendant’s decision to terminate Plaintiff’s employment was also based on
Plaintiff’s age, thereby constituting willful and intentional discrimination in violation of the New
Jersey Law Against Discrimination, N.J.S.A. § 10:5-1 et seq. Compl., Third Count.
4
Plaintiff’s Complaint originally included seven counts. The Court, in an opinion and order dated November 16,
2010, dismissed Plaintiff’s claims alleging retaliation, perceived discrimination, aider and abettor liability, and
hostile work environment under the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-1 et seq.
(Doc. Nos. 9-10). It also dismissed Plaintiff’s wife’s claim for loss of consortium. Id. Consequently, Defendant’s
motion for summary judgment is directed at Plaintiff’s FMLA retaliation claim (First Count), NJLAD age
discrimination claim (Third Count), and a his prayer for punitive damages (Seventh Count).
5
In October 2012, Defendant filed the instant motion for summary judgment on Plaintiff’s
(Doc. No. 46). The crux of Defendant’s motion is that Plaintiff has failed to offer facts in
support of either of his remaining claims, such that no genuine dispute of material fact exists that
would warrant a trial. After a brief recitation of the proper legal standard governing a motion for
summary judgment, the Court will examine each of Plaintiff’s claims in turn.
II.
LEGAL STANDARD
Summary judgment is appropriate where the Court is satisfied that “there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine dispute
of material fact exists only if the evidence is such that a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the Court
weighs the evidence presented by the parties, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
The burden of establishing the nonexistence of a “genuine issue” is on the party moving
for summary judgment. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir.
1996). The moving party may satisfy its burden either by “produc[ing] evidence showing the
absence of a genuine issue of material fact” or by ‘showing’ – that is, pointing out to the district
court – that there is an absence of evidence to support the nonmoving party’s case.” Celotex,
477 U.S. at 325.
If the party seeking summary judgment makes this showing, it is left to the nonmoving
party to “do more than simply show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, to
survive summary judgment, the nonmoving party must “make a showing sufficient to establish
6
the existence of [every] 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. Furthermore, “[w]hen opposing summary
judgment, the nonmovant may not rest upon mere allegations, but rather must ‘identify those
facts of record which would contradict the facts identified by the movant.’” Corliss v. Varner,
247 Fed. Appx. 353, 354 (3d Cir. Sept. 17, 2007) (quoting Port Auth. of N.Y. and N.J. v.
Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002)).
In 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, not the district court. BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363
(3d Cir. 1992).
III.
DISCUSSION
A.
FMLA Retaliation
Where, as here, a plaintiff seeks to establish an FMLA retaliation claim through the use
of circumstantial evidence, the Court assesses the plaintiff’s case using the familiar burdenshifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Lichtenstein v. University of Pittsburgh Medical Ctr., 691 F.3d 294, 302 (3d Cir. 2012).
Under the McDonnell Douglas framework, the plaintiff has the initial burden of
establishing a prima facie case of FMLA discrimination. See Naber v. Dover Healthcare
Assocs., Inc., 473 Fed. App’x 157, 159-60 (3d Cir. Apr. 2, 2012). Doing so creates a rebuttable
presumption that the employer unlawfully discriminated against him. Thurston v. Cherry Hill
Triplex, --- F. Supp. 2d ---, 2008 WL 9374284 at *9 (D.N.J. Aug. 5, 2008). Consequently, upon
the plaintiff establishing his prima facie case, the burden shifts to the defendant “to articulate a
7
legitimate, nondiscriminatory reason for its adverse employment action.” Id. (quoting Bearley v.
Friendly Ice Cream Corp., 322 F. Supp. 2d 563, 571 (M.D. Pa. 2004)). If the defendant
employer can offer such a reason, the presumption of unlawful discrimination falls away, and the
burden shifts back to the plaintiff, who must show that the employer’s proffered reason was
simply a pretext for retaliatory animus owing to the plaintiff’s decision to take FMLA leave.
Thurston, 2008 WL 9374284 at *9.
Prevailing on an FMLA retaliation claim requires the plaintiff to prove three things: (1)
that he invoked his right to FMLA-qualifying leave; (2) that he suffered an adverse employment
decision; (3) that there is a causal relationship between the leave request and the adverse action.
Lichtenstein v. University of Pittsburgh Medical Ctr., 691 F.3d 294, 301-02 (3d Cir. 2012).
As to the second element of the prima facie case for FMLA retaliation, an adverse
employment decision must be a “materially adverse” one, meaning that it “might well have
dissuaded a reasonable worker from making or supporting a charge of discrimination.” Moore v.
City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006) (citing Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 68 (2006)). 5 Such a standard does not encompass the mere “petty slights,
minor annoyances, and simple lack of good manners” attendant to virtually all workplaces,
because such circumstances cannot be expected to deter employees from exercising their FMLA
rights. See Burlington Northern, 548 U.S. at 68. Instead, the Court, adopting the perspective of
5
It bears mention that the United States Supreme Court in Burlington Northern developed this standard in the
context of a retaliation claim asserted under the anti-discrimination provisions in Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2(a), and not under the FMLA. While the Third Circuit has never squarely held that this
“materially adverse” standard applies in the context of an FMLA retaliation claim, it has suggested that, were it
necessary to address the issue, it would so hold. See Kasper v. County of Bucks, No. 12-2504, 2013 WL 563342 at
*5 (3d Cir. Feb. 15, 2013) (assuming, “arguendo, that the Burlington Northern standard applies in the FMLA
context); DiCampli v. Korman Communities, 257 Fed. App’x 497, 500-01 (3d Cir. 2007) (applying the Burlington
Northern standard to an FMLA claim without further discussion). At least five other circuit courts of appeals have
reached this conclusion. Millea v. Metro-North R. Co., 658 F.3d 154, 164 (2d Cir. 2011); Metzler v. Fed. Home
Loan bank of Topeka, 464 F.3d 1164, 1171 n.2 (10th Cir. 2006); McArdle v. Dell Products, L.P., 293 Fed. App’x
331, 337 (5th Cir. 2008); Csicsmann v. Sallada, 211 Fed. App’x 163, 168 (4th Cir. 2006); Foshee v. Ascension
Health-IS, Inc., 384 Fed. App’x 890, 891 (11th Cir. 2010) (assuming without deciding that the Burlington Northern
standard applies in the FMLA context). The Court will likewise apply this standard in the present context.
8
a reasonable person in the plaintiff’s position, must consider all the circumstances of the
particular case to determine whether this element has been satisfied. See Culler v. Shinseki, 840
F. Supp. 2d 838, 846 (M.D. Pa. 2011) (citing Burlington Northern, 548 U.S. at 71).
With respect to the third element of the prima facie case, establishing a causal
relationship between the decision to take FMLA leave and the adverse employment decision
necessarily requires proof of retaliatory intent by the employer. Retaliation need not be the sole
reason motivating the adverse employment decision; rather, it will suffice for the plaintiff to
show that the retaliatory animus was “a determinative factor,” meaning in essence that “the
action would not have been taken but for [the] protected activity.” Culler v. Shinseki, 840 F.
Supp. 2d 838, 846 (D.N.J. 2011) (citing LeBoon v. Lancaster Jewish Community Center Ass’n,
503 F.3d 217, 231-32 (3d Cir. 2007)). 6
Stated another way, the court’s inquiry is whether the
proffered evidence “suffices to raise the inference” that the plaintiff’s request for FMLA leave
was causally related to the adverse employment action in question. See LeBoon, 503 F.3d at 232.
The Third Circuit has noted that there are two main methods of raising such an inference.
Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 288 (3d Cir. 2001). First,
where there exists “unusually suggestive” timing between the leave request and the adverse
6
The Culler court freely relies on cases like LeBoon to inform its FMLA retaliation claim prima facie analysis, even
though the plaintiff in LeBoon was asserting a retaliation claim not under the FMLA but rather under Title VII of the
Civil Rights Act. LeBoon, 503 F.3d at 231. Indeed, numerous district courts in this Circuit have observed that the
Third Circuit’s decisions involving claims of retaliation under Title VII, the Americans with Disabilities Act, and
the Age Discrimination in Employment Act provide “helpful guidance” in the FMLA context. E.g., Chapman v.
UPMC Health System, 516 F. Supp. 2d 506, 523-24 (W.D. Pa. 2007); Grosso v. Federal Exp. Corp., 467 F. Supp.
2d 449, 459 (E.D. Pa. 2006); Collier v. Target Stores Corp., No. 03-1144, 2005 WL 850855 at *7 (D. Del. Apr. 13,
2005). While the Third Circuit has never explicitly approved of this borrowing practice, its endorsement of this
approach can be inferred based on its own FMLA analyses. See, e.g., Lichtenstein v. Univ. of Pittsburgh Med. Ctr.,
691 F.3d 294, 307 (3d Cir. 2012) (discussing the causation element in the FMLA retaliation prima facie case and
explaining the concept by reference to its Title VII discrimination precedents) (citing Farrell v. Planters Lifesavers
Co., 206 F.3d 271, 279-81 (3d Cir. 2000) and LeBoon, 503 F.3d at 232); Schofield v. Metropolitan Life Ins. Co., 252
Fed. App’x 500, 504 (3d Cir. 2007) (employing the same practice by reference to Title VII and ADA discrimination
precedents) (citing Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001) (Title VII) and Williams v. Phila.
Housing Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir. 2004) (ADA). The Court will adhere to this practice in the
instant matter.
9
employment action, such circumstance may be sufficient to establish causation. Lamarca v.
Verizon Pa., Inc., No. 09-203, 2010 WL 2044627 at *9 (W.D. Pa. may 20, 2010) (citing LeBoon,
503 F.3d at 232). Second, causation may be established based on a period of “intervening
antagonism.” LeBoon, 503 F.3d at 232. To make this determination, courts consider “a broad
array of evidence.” Importantly, it is incumbent upon the employee to demonstrate that the
antagonistic behavior began after the FMLA request was made. Compare Randler v. Kountry
Kraft Kitchens, No. 11-474, 2012 WL 6561510 at *12 (M.D. Pa. Dec. 17, 2012) (rejecting
plaintiff’s causation argument in part because the alleged antagonistic behavior towards plaintiff,
taking the form of “jokes and remarks,” was “not markedly different from the incidents [the
plaintiff] experienced prior to her” engaging in protected activity) with Abramson, 260 F.3d at
289 (crediting plaintiff’s evidence of ongoing antagonism in light of evidence of plaintiff’s
superior’s “change in demeanor after [plaintiff engaged in protected activity]”) (emphasis
added). Finally, in addition to these two primary methods, inconsistencies or discrepancies in
the employer’s articulated reasons for terminating the employee may be sufficient to support an
inference of causation. LeBoon, 503 F.3d at 232; Abramson, 260 F.3d at 290. Id. When
considering any circumstantial evidence of causation, the Court is to lend “a careful eye to the
specific facts and circumstances encountered.” Farrell v. Planters Lifesavers Co., 206 F.3d 271,
279 n.5 (3d Cir. 2000); see also Robinson v. Southeastern Pennsylvania Transp. Auth., Red
Arrow Div., 982 F.2d 892, 895 (3d Cir. 1993) (deeming trial court’s finding of a causal link not
to be clearly erroneous when evidence was presented that the plaintiff was subjected to “a
constant barrage of written and verbal warnings . . ., inaccurate point totalings, and disciplinary
action, all of which occurred soon after plaintiff’s initial complaints and continued until his
discharge”) (Title VII discrimination case); Marra v. Philadelphia Housing Auth., 497 F.3d 286,
10
304-05 (finding causation based on pattern of antagonism when, after engaging in protected
activity, plaintiff’s computer was vandalized and never adequately investigated, plaintiff was
excluded from an important meeting, one of his subordinates was assigned away from him
against his will, and plaintiff’s superior gave him a look of disgust upon learning of his
participation in the protected activity).
An employer’s burden to offer a legitimate non-discriminatory reason for taking the
adverse employment action with respect to the employee is a relatively light one. Fuentes v.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994); see also Constant v. Mellon Financial Corp., 247 Fed.
App’x 332, 337 (3d Cir. 2007) (citing Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248,
254 (1981)) (describing the employer’s burden to adduce a legitimate nondiscriminatory reason
as being “one of production, not persuasion”).
Once the employer has done so, the employee must establish pretext by offering evidence
from which a reasonable factfinder could either “(1) mistrust the employer’s articulated genuine
reasons; or (2) believe that a discriminatory reason was likely a motivating or determinative
factor of the employer’s action.” Moore v. City of Camden, No. 10-3044, 2013 WL 1903300 at
*5 (D.N.J. May 7, 2013) (citing Naber v. Dover Healthcare Assocs. Inc., 473 Fed. App’x 157,
160 (3d Cir. 2012). Stated another way, the employee must show that each proffered legitimate
non-discriminatory reason was either a “post hoc fabrication or otherwise did not actually
motivate the employment action . . . .” Fuentes, 32 F.3d at 764 (italics in original). A plaintiff
does this not by showing that the employer’s decision was “wrong or mistaken,” but rather that
the reasons for that decision admit of “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” such that a reasonable factfinder could find them “unworthy of
credence.” Id.
11
In this case, there is no dispute that Plaintiff requested and took FMLA leave, thereby
satisfying the first element of his prima facie case. With regard to the second element, Plaintiff,
although his motion papers do not make it abundantly clear, can be understood to be presenting
two adverse employment actions: first, the taking away of his company-furnished service vehicle
(along with the accompanying gas card and EZ-Pass), and second, his termination of
employment. The Court will now address both theories.
i.
Adverse employment action: loss of company vehicle
It is undisputed that when Plaintiff returned from FMLA leave, he lost access to the
vehicle, gas card, and EZ-Pass that Defendant had previously provided him. Pl.’s Dep. at 160;
Def.’s Reply Br. in Support of S.J. 11. The loss of this kind of workplace benefit can be
considered a “materially adverse” employment action under Burlington Northern. Accord Diaz
v. Miami Dade County, No. 09-21856, 2010 WL 3927751 at *7 (S.D. Fla. Aug. 17, 2010)
(concluding that plaintiff had established triable issue of fact on material adverse employment
action where, in addition to other changes in his job, he lost the use of his take-home vehicle).
Finally, because the loss of this benefit occurred directly upon Plaintiff’s return from FMLA
leave, there exists the “unusually suggestive timing” that permits the inference of causation. See
Lamarca, 2010 WL 2044627 at *9. Thus, Plaintiff has stated a prima facie case of FMLA
retaliation.
In response, Defendant offers a compelling legitimate nondiscriminatory reason for
taking away Plaintiff’s vehicle. Plaintiff admitted that he retained access to a company vehicle
after he was promoted to service center team lead only because he agreed to perform some inhome service on an occasional basis. Pl.’s Dep. 66. He acknowledged that no other service
center team lead had a company vehicle. Id. Defendant maintains that the only reason it ceased
12
to provide Plaintiff with a company vehicle was that he was no longer going to go out on service
calls after returning from FMLA leave. Ayoubi Dep. 53. Indeed, Plaintiff admitted that, had he
been asked to perform in home service after his return to work, he would have refused it. Pl.’s
Dep. 67-68.
Plaintiff cannot offer any persuasive evidence that Defendant’s proffered reason for
taking away Plaintiff’s company vehicle was pretextual. There are no inconsistencies in
Defendant’s explanation for this decision. Simply stated, there is nothing in the record that
would lead a reasonable factfinder either to “mistrust” Defendant’s articulated reasons for taking
away Plaintiff’s vehicle or to “believe that a discriminatory reason was likely a motivating or
determinative factor” in that action. See Moore v. City of Camden, No. 10-3044, 2013 WL
1903300 at *5 (D.N.J. May 7, 2013). Thus, Plaintiff’s FMLA retaliation claim cannot survive
summary judgment on this basis.
ii.
Adverse employment action: termination of employment
In the alternative, Plaintiff alleges that taking FMLA leave resulted in the termination of
his employment with Defendant. Under this theory, it is clear that he has alleged a qualifying
adverse employment action. Unfortunately for Plaintiff, however, his claim suffers from serious
deficiencies that render summary judgment in Defendant’s favor appropriate.
First, although he successfully establishes the first two elements of a prima facie FMLA
retaliation claim, Plaintiff offers scant evidence of a causal link between his taking leave and his
ultimate termination. Because Plaintiff returned from FMLA leave on January 19, 2009 and was
not terminated until April 14, 2009, about three months later, there exists no “unusually
suggestive” timing between the two events that would suffice to establish the causation element.
See LeBoon, 503 F.3d at 233 (“Although there is no bright line rule as to what constitutes unduly
13
suggestive temporal proximity, a gap of three months between the protected activity and the
adverse action, without more, cannot create an inference of causation and defeat summary
judgment.”).
Instead, Plaintiff must attempt to establish a pattern of ongoing antagonism that began
after he requested and took FMLA leave and continued up until the time of his termination. See
id. at 232. To satisfy this burden, Plaintiff offers the following evidence:
•
•
•
•
•
Upon his return to work after taking FMLA leave, he was forced to work as a co-lead in
the Television Department, rather than running the department by himself. Ayoubi Dep.
21.
Upon his return, Plaintiff lost the use of his company vehicle, gas card, and EZ Pass.
At times, when he tried to set goals and objectives for his team, his co-team lead, with
the help of their supervisor, would change those goals and objectives. Pl.’s Dep. 174.
His co-team lead printed out a picture of a Hoveraround chair and used it as part of a
joke at Plaintiff’s expense. Id. at 169.
Plaintiff’s superior “chuckled” when presented with a copy of the Hoveraround email.
Id. at 78-80.
Even viewing this evidence in the light most favorable to the Plaintiff, the Court finds that
Plaintiff has failed to establish the causal link necessary to sustain his FMLA retaliation claim.
While it is true that Plaintiff worked as a co-team lead after his return from FMLA leave, he
acknowledged that he had worked in the same arrangement previously. Pl.’s Dep. 75-76. Thus,
to the extent it could even be considered “antagonistic” for management to place Plaintiff in a
co-lead position, it had taken such action prior to Plaintiff’s taking FMLA leave. As a result,
Plaintiff’s co-lead status cannot help to establish causation a part of a pattern of ongoing
antagonism, because it is not “new” behavior that began only after Plaintiff engaged in protected
activity. See Randler, 2012 WL 6561510 at *12.
The Hoveround email has limited value. The email originated with one of Plaintiff’s coworkers, not a superior, so there is no basis to impute this single act by a non-supervisor to the
motives of the Defendant company in terminating Plaintiff’s employment. Accord Ellison v.
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Oaks 422 LLC, No. 11-2943, 2012 WL 876723 at *7 (E.D. Pa. Mar. 15, 2012) (“Animosity from
coworkers cannot constitute retaliation because coworkers do not have any authority to carry out
an adverse employment action.”) (citing Jensen v. Potter, 435 F.3d 444, 452 (3d Cir. 2006)). To
the extent that Mr. Ayoubi’s chuckling upon being presented with the email can be understood as
an adoption by plaintiff’s supervisor of the sentiment implied by the email, such evidence is not
particularly probative to show a pattern of antagonism where, as here, Mr. Ayoubi’s actions
amounted to a “stray remark, unconnected with and remote from the decision-making process
which resulted in [Plaintiff’s] discharge.” See Calero v. Cardone Indus., Inc., at *8 (E.D. Pa.
June 29, 2012) (citing Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 333 (3d Cir.
1995)). Generally, one single such event does not constitute harassment or antagonism.
McCormick v. Allegheny Valley School, No. 06-3332, 2008 WL 355617 at *18 (E.D. Pa. Feb. 6,
2008).
Next, for the reasons discussed in the above subsection, because Defendant had a
legitimate nondiscriminatory reason for taking away Plaintiff’s company vehicle, and because
Plaintiff cannot offer evidence to show that that the proffered reasons for this decision were
pretextual, he cannot rely on the loss of his vehicle to establish a pattern of intervening
antagonism for purposes of establishing causation on his FMLA claim.
Accordingly, Plaintiff’s relevant evidence to establish causation is limited to the
Hoveround email and his deposition testimony that from time to time his team goals and
objectives were countermanded by his co-team lead. Simply stated, this is not enough to
establish the causal link necessary to sustain an FMLA retaliation claim. Because Plaintiff has
failed to establish his prima facie case, the Court need go no further in its McDonnell Douglas
analysis, and will grant summary judgment on this claim in Defendant’s favor.
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B.
Age Discrimination
The New Jersey Law Against Discrimination (“NJLAD”) prohibits an employer from
discrimination in the “terms conditions, or privileges of employment” on the basis of, among
other things, a person’s age. N.J.S.A § 10:5-12(a). The contours of an NJLAD age
discrimination claim are strongly informed, though not inexorably resolved, by reference to
federal substantive and procedural rules in the Title VII context. Hernandez v. Federal Express,
No. 06-4745, 2008 WL 163642 at *3 (D.N.J. Jan. 16, 2008) (citing Gerety v. Atlantic City Hilton
Casino Resort, 184 N.J. 391, 398 (2005)); accord Bergen Comm. Bank v. Sisler, 723 A.2d 944,
954 (N.J. 1999) (“To the extent the federal standards [for age discrimination] are ‘useful and
fair,’ they will be applied in the interest of achieving uniformity in the discrimination laws.”)
Accordingly, when a claimant seeks to establish discriminatory employment actions through the
use of circumstantial evidence, the Court applies the three step McDonnell Douglas burden
shifting framework. Sisler, 723 A.2d at 954. When conducting this analysis, the Court is
mindful that the plaintiff’s burden, in its essence, is to show that his age “played a role in the
employer’s decisionmaking process and had a determinative influence on the outcome of that
process.” Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 300 (3d Cir. 2004)).
As the second and third steps of the McDonnell Douglas analysis are identical in the
FMLA retaliation context as in the NJLAD age discrimination context, the Court need not
reiterate the those legal standards as they are set forth in Part III.A. of this Opinion. It is
necessary, however, to consider the first step. To state a prima facie cause of action under the
NJLAD, Plaintiff must demonstrate that (1) he belongs to a protected class, (2) his job
performance met his employer’s legitimate expectations, and (3) he suffered an adverse
employment action. Finally, the plaintiff must establish a fourth element, which may take
16
different forms depending on the circumstances underlying his claim: that is, he must show
either that he was replaced by someone sufficiently younger as to permit an inference of age
discrimination, Anderson v. Thermo Fisher Scientific, 11-3394, 2013 WL 1222738 at *3 (D.N.J.
Mar. 25, 2013), or that his employer “retained someone similarly situated to him who was
sufficiently younger.” Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 305 (3d Cir. 2004)
(emphasis added).
In this case, Defendant, for purposes of the instant motion, concedes that Plaintiff has
established the first three elements of his prima facie case. Def.’s Br. 6 n.2. However,
Defendant argues forcefully that Plaintiff has failed to establish the fourth element. Id. at 6-7.
Defendant explains that right before his termination, Plaintiff was serving as co-team lead in the
Television Department along with Mark Bahadur. After Plaintiff’s termination, Mr. Bahadur
remained in his position, but Defendant did not hire anyone to take over for Plaintiff, thereby
leaving Mr. Bahadur as the sole television team lead. Thus, Defendant argues, Plaintiff was not
actually “replaced” by anyone sufficiently younger, and therefore has failed to establish his
prima facie case.
The Court cannot accept this argument for several reasons. First, the Court is mindful of
the statements of Plaintiff’s manager Mr. Ayoubi, recounted in some details in footnote 3 above,
indicating that Mr. Bahadur took over Plaintiff’s position after Plaintiff was terminated. Taken
together, and viewed in the light most favorable to the nonmoving party, they amount to an
admission by Defendant’s representative that in fact Plaintiff was replaced by Mr. Bahadur.
Second, Plaintiff need not necessarily show that he was actually replaced by a younger person in
order to sustain an NJLAD age discrimination claim if he can show that his employer retained a
similarly situated younger employee. See Monaco, 359 F.3d at 305 (describing the “reduction in
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force” theory of age discrimination under the NJLAD). There can be no doubt that as “co-team
leads,” Plaintiff and Mark Bahadur appear to have had the same “job function, level of
supervisory responsibility and salary,” which would render them “similarly situated” employees.
See id. Thus, because Mark Bahadur remained in his position after Plaintiff was terminated, and
because Mr. Bahadur is seventeen years younger than Plaintiff, see Pl.’s Opp. Br. 3, the Court
finds that Plaintiff has met his burden of establishing the elements of his prima facie case of age
discrimination because he has offered evidence showing that, among other things, he was
terminated from his position while his employer “retained someone similarly situated to him who
was sufficiently younger.” See Monaco, 359 F.3d at 305.
The Court therefore proceeds to the second stage of McDonnell Douglas. In this case,
there is no doubt that Defendant has offered a legitimate non-discriminatory reason for
terminating Plaintiff’s employment: it had placed Plaintiff on a Final Warning for inappropriate
workplace conduct towards his fellow employees, and subsequently found a string of crass
emails Plaintiff wrote disparaging his co-worker Mr. Bahadur. Def.’s SUMF ¶¶ 49-53. The
decision was then made to terminate Plaintiff’s employment for violation of his Final Warning
after consultation with a third-party human resources consultant. Id. ¶¶ 55-59.
Accordingly, the burden shifts back to Plaintiff, who must offer evidence evidence from
which a reasonable factfinder could either “(1) mistrust the employer’s articulated genuine
reasons; or (2) believe that a discriminatory reason was likely a motivating or determinative
factor of the employer’s action.” Moore v. City of Camden, No. 10-3044, 2013 WL 1903300 at
*5 (D.N.J. May 7, 2013) (citing Naber v. Dover Healthcare Assocs. Inc., 473 Fed. App’x 157,
160 (3d Cir. 2012). Here, Plaintiff’s Opposition Brief makes reference to inconsistencies in the
explanation for how Plaintiff’s disparaging emails were discovered by his manager Mr. Ayoubi.
18
It also emphasizes the fact that Plaintiff was asked to sign an acknowledgement of Defendant’s
human resource policies and Code of Business Ethics days before his termination, which his
human resources manager then backdated to suggest that the forms had been signed when
Plaintiff began his employment with the company in 2005. Pl.’s Opp. Br. 6-7. The Court finds
this evidence to be of little relevance to the question of pretext.
More persuasive, however, is Plaintiff’s testimony regarding the Hoveround email. Mr.
Bahadur emailed Plaintiff a picture of a Hoveround wheelchair that included the caption, “you
could use one of these.” Pl.’s Dep. 78. Plaintiff, apparently offended by his coworker’s making
fun of him for being old and weak, forwarded the email to his manager Mr. Ayoubi. Upon
receiving the email, Mr. Ayoubi “laughed at it and did nothing about it.” Id. This amounts to an
adoption of a disparaging statement about Plaintiff’s age by an individual who contributed in the
decision to terminate Plaintiff’s employment. 7 Accordingly, the Court finds that Plaintiff has
offered just enough evidence from which a reasonable factfinder could “mistrust the employer’s
articulated genuine reason” for terminating Plaintiff’s employment. For these reasons, the Court
will deny Defendant’s motion for summary judgment.
C.
Prayer for Punitive Damages
Finally, Defendant asks the Court to strike Plaintiff’s prayer for punitive damages. Def.’s
Br. in Support of S.J. 18-20. Although it has very serious doubts whether Plaintiff has alleged
sufficient facts to give rise to an award of punitive damages under the NJLAD, the Court
nevertheless finds that ruling on this issue at the summary judgment stage would be premature.
7
Mr. Ayoubi admitted that he was involved in the investigation into Plaintiff’s emails about Mr. Bahadur that led to
Plaintiff’s termination. Ayoubi Dep. 83. Thus, even if Mr. Ayoubi was not the person who acted as the ultimate
decision-maker on the question of whether to terminate Plaintiff, his conduct can suffice to establish Defendant’s
liability for discrimination if he exercised influence over those decision-makers. See Battaglia v. United Parcel
Serv., Inc., No. L-10341-06, 2011 WL 3516925 at *10 (N.J. App. Div. Aug. 12, 2011) (discussing this so called
“cat’s paw” theory of liability recently reaffirmed by the United States Supreme Court in Staub v. Proctor Hosp., --U.S. ---, 131 S. Ct. 1186, 1189 (2011)).
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Instead, it will decide whether to instruct the jury on punitive damages after trial in this matter
gets underway. Thus, it will deny Defendant’s motion for summary judgment on this issue
without prejudice.
IV.
CONCLUSION
For the reasons stated above, the Court will grant Defendant summary judgment on
Plaintiff’s FMLA retaliation claim and will deny Defendant summary judgment on Plaintiff’s
NJLAD age discrimination claim. It will also deny without prejudice Defendant’s motion for
summary judgment on Plaintiff’s prayer for punitive damages. An appropriate order shall issue
today.
Dated:
6/27/2013
/s/ Robert B. Kugler
_
ROBERT B. KUGLER
United States District Judge
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