HENSON v. U.S. FOODSERVICE, INC. et al
Filing
79
OPINION. Signed by Chief Judge Jerome B. Simandle on 11/19/2013. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ROBERT HENSON,
Plaintiff,
Civil No. 11-1809 (JBS/KMW)
v.
U.S. FOODSERVICE, et al.,
OPINION
Defendants.
APPEARANCES:
William Riback, Esq.
Alex Schwartz, Esq.
Lauren Plevinsky, Esq.
William Riback LLC
132 Haddon Ave.
Haddonfield, NJ 08033
Attorneys for Plaintiff Richard Henson
Karla Grossenbacher, Esq.
Taron K. Murakami, Esq.
Seyfarth Shaw LLP
975 F Street NW
Washington, DC 20004
-andAlnisa S. Bell, Esq.
Seyfarth Shaw LLP
620 Eighth Avenue
New York, NY 10018
Attorneys for Defendant U.S. Foodservice, Inc.
SIMANDLE, Chief Judge:
I.
INTRODUCTION
Plaintiff Robert Henson brings this action against his
former employer Defendant U.S. Foodservice, Inc. (“US Foods”)
and Defendants John Does 1-10 alleging claims for interference
and unlawful retaliation under the Family Medical Leave Act
(“FMLA”) and unlawful retaliation based on race and hostile work
environment under the New Jersey Law Against Discrimination
(“NJLAD”). This matter comes before the Court on Defendant US
Foods’ motion for summary judgment on all counts. [Docket Item
46.] The Court heard oral argument on November 6, 2013. US
Foods’ motion will be granted because US Foods had a legitimate,
non-discriminatory reason for terminating Plaintiff, which has
not been cast into reasonable doubt, and Plaintiff was not
subjected to a racially hostile work environment.
II. BACKGROUND
A. Factual Background
a. Plaintiff’s Employment with US Foods
US Foods distributes food, equipment, and related products
to restaurants, hospitals, and other institutional customers.
(Def. Statement of Undisputed Facts (“SOF”) ¶ 1.)
Plaintiff, who is African-American, began working for US
Foods on or about April 4, 2004. (Def. SOF ¶ 14.) Plaintiff
worked as a Selector for US Foods’ Bridgeport facility in
Bridgeport, New Jersey. (Def. SOF ¶ 15.) Selectors locate food
products in the warehouse and transfer them to pallets. (Def.
2
SOF ¶ 16.) The boxes of product on pallets can be quite heavy
and are stacked quite high. (Def. SOF ¶ 20.)
“Leaning pallets,” i.e., pallets with product leaning to
the side, must be rebuilt because they are significant safety
risks. (Def. SOF ¶ 20.) Leaning pallets easily collapse, cause
boxes to fall and, thus, pose a significant risk of injury.
(Def. SOF ¶ 20.) Leaning pallets are also a risk to the product,
which can be damaged from falling. (Def. SOF ¶ 21.) Pallets
usually lean because of crushed product, which US Foods does not
ship because of the risk of food spoilage or damage. (Def. SOF ¶
21.) Customers often refuse to accept leaning pallets and
delivering such pallets threatens customer relationships. (Def.
SOF ¶ 21.)
Plaintiff’s union shop steward, William Anthony, who is
also African-American, testified that Selectors “must break [a
leaning pallet] down if they’re told to break it down.” (Anthony
Dep. 29:8-9.) Anthony also testified that he had “never” seen a
supervisor instruct an employee to return a leaning pallet and
bring a new one. (Anthony Dep. 29:18.) Frank Keyser, the day
warehouse manager, testified that, when there is a leaning
pallet, “[t]he procedure would be to rebuild the skid and rewrap
the skid.” (Keyser Dep. 21:16-17.)
3
US Foods’ Selectors at its Bridgeport facility are governed
by the Rules of Conduct (“Rules”), which were negotiated by US
Foods with the Union and which were approved and signed by the
Union. (Def. SOF ¶ 9.) The Rules provide a non-exclusive list of
required discipline and standards of conduct that employees must
observe. (Def. SOF ¶ 10.) The Rules specify that certain conduct
will subject an employee to “Immediate Termination,” including
“Insubordination: including the failure to follow a direct order
from a supervisor/manager.” (Def. SOF ¶ 12.)
b. Plaintiff’s Mispicks
Selectors are subject to various performance standards,
including “mispicks,” which occur when employees incorrectly
select product for delivery to customers. (Def. SOF ¶¶ 32-33.)
In 2008, Plaintiff received disciplinary write-ups for mispicks
on eight separate occasions. (Def. SOF ¶ 35.) In 2009, Plaintiff
received disciplinary write-ups for mispicks on nine separate
occasions. (Def. SOF ¶ 36.) In 2010, Plaintiff received one
warning for mispicks. (Def. SOF ¶ 37.)
During Plaintiff’s employment, US Foods’ employees were
subject to progressive discipline for mispicks: (1) documented
discussion, (2) documented discussion, (3) written warning, (4)
second written warning, (5) one-day working suspension, (6)
three-day working suspension, and (7) termination. (Def. SOF ¶
4
34.) Disciplinary write-ups for mispicks were removed from an
employee’s file if more than one year passed without that
employee receiving a subsequent disciplinary write-up for
mispicks. (Def. SOF ¶ 34.) US Foods management removed mispick
disciplinary write-ups from Plaintiff’s employment file on a
number of occasions. (Def. SOF ¶ 41.)
c. Plaintiff’s Termination
On August 26, 2010, Plaintiff was preparing a shipment that
included one full pallet plus five additional boxes of frozen
crab legs for a major US Foods customer. (Def. SOF ¶ 43.)
Plaintiff retrieved a full pallet of crab legs from the
warehouse freezer and added five boxes to the top. (Def. SOF ¶
43.) The pallet contained approximately 25 boxes weighing 30
pounds each, for a total of 750 pounds stacked five feet high.
(Def. SOF ¶ 45.) Each box sold, at that time, for $144.60, and
the total value of the 25-box shipment was over $3,500. (Def.
SOF ¶ 44.)
Plaintiff “brought out a skid that was leaning.” (Pl. Dep.
54:13.) When Plaintiff’s supervisor Jack Conway saw the leaning
pallet, he instructed Plaintiff to rebuild it. (Def. SOF ¶ 48.)
Instead of following Conway’s direction, Plaintiff switched the
leaning pallet with a new “better-looking” one without Conway’s
permission. (Def. SOF ¶ 49.) He added five boxes to the new
5
pallet, returned the leaning pallet to the freezer, and left
work for the day. (Def. SOF ¶ 49.) Plaintiff did not follow
Conway’s instruction because he “was just really trying to get
home” and because he thought his way was “better.” (Def. SOF ¶
50.) Plaintiff had previously rebuilt pallets as instructed, and
he admits that leaning pallets are unsafe. (Def. SOF ¶ 52.)
Conway alleged that Plaintiff was insubordinate. (Pl.
Counter SOF ¶ 3.) Conway told Robb Lebb, Director of Operations,
that when Conway told Plaintiff to rebuild the pallet, Plaintiff
responded that he would not rebuild it and instead would
retrieve a new pallet. (Lebb Decl. ¶ 25.) Conway told Lebb that
he then reiterated his instruction to rebuild the pallet and
expressly told Plaintiff not to swap the leaning pallet with a
new pallet. (Lebb Decl. ¶ 25.) Anthony, the union shop steward,
also testified that Conway “said he told [Plaintiff] at least
two, three times to rebuild that pallet.” (Anthony Dep. 58:2122.)
The day after the incident, Plaintiff met with Conway; his
Union shop steward, William Anthony; and Rob Lebb. (Pl. Dep.
58:8-11.) Anthony testified that when Plaintiff was questioned
about “why he did not do what he was told as far as rebuilding
the pallet,” Plaintiff said “his way was better . . . why should
he rebuild the pallet when he can just go in the slot and take
6
another pallet out.” (Anthony Dep. 18:14-21.) Anthony testified
that Plaintiff “was told to specifically undo the pallet that he
had placed in the dock” and that Plaintiff “thought it was
easier for him to do it his way as opposed to the way he was
being told to do it.” (Anthony Dep. 18:23-19:5.) Anthony
testified that Plaintiff “wasn’t really remorseful in that
meeting, no. Kept saying he indicated that he felt his way was
better than the company’s way. He did not show no remorse in
that meeting, no. He actually thought he was not doing nothing
wrong.” (Anthony Dep. 60:21-61:2.)
Plaintiff was terminated on August 31, 2010 by US Foods for
his refusal to rebuild the crab-leg pallet per Conway’s direct
orders. (Def. SOF ¶ 54.) The stated reason for the termination
was insubordination and lack of remorse. (Pl. Counter SOF ¶ 28.)
The decision to terminate Plaintiff’s employment was made by Rob
Lebb, Director of Warehouse Operations, and Rick Hutter,
Regional Vice President of Operations, based on the information
Lebb obtained about the incident. (Def. SOF ¶ 54.)
US Foods alleged that Plaintiff was not contrite. (Pl.
Counter SOF ¶ 7.) At the meeting after the incident, Lebb
perceived that Plaintiff did not express remorse for
intentionally ignoring his supervisor’s instructions. (Lebb
Decl. ¶ 25.) Plaintiff continues to maintain that he did the
7
right thing on August 26, 2010 and that he was never
insubordinate. (Def. SOF ¶ 62, Pl. Response to Def. SOF ¶ 62.)
At some point during the termination process, Anthony saw
Conway and Lebb speak privately and “whatever occurred between
their conversation, I don’t know.” (Anthony Dep. 36:25-37:1.)
Plaintiff grieved his termination through the Union. (Def.
SOF ¶ 57.) US Foods denied Plaintiff’s grievance, and the Union
did not exercise its right to appeal the termination decision.
(Def. SOF ¶ 63.)
During the grievance process, neither Plaintiff nor the
Union ever raised allegations of race or FMLA discrimination.
(Def. SOF ¶ 64.)
US Foods later terminated Plaintiff’s supervisor Conway for
theft and dishonesty. (Pl. Counter SOF ¶ 12.)
d. Plaintiff’s Work Environment
A group of African-American employees typically ate lunch
together in the break room. (Pl. Counter SOF ¶ 77.) Plaintiff
testified that Conway made jokes in front of him and other
African-American employees asking them during their lunch break
if they were eating chicken and grape soda, calling their lunch
break the “BET lunch,”1 and commenting about his African-American
1
The “BET lunch” reference arose because the employees watched
Black Entertainment Television. (Def. SOF ¶ 71.)
8
step-children listening to rap music. (Def. SOF ¶ 65.) Plaintiff
also alleges that he heard Conway making racially-charged jokes
during his lunch break, including jokes about African-Americans’
genital sizes and watching basketball. (Def. SOF ¶ 66.)
According to Plaintiff, all of Conway’s comments occurred in the
break room during the third lunch break. (Def. SOF ¶ 67.) These
comments occurred “every day at lunchtime . . . with another
black employee, [Conway] would go back and forth with.” (Pl.
Dep. 53:7-9.) Plaintiff “didn’t want to hear” and “took
offense.” (Pl. Dep. 53:10.)
Selectors can choose between three different lunch break
options and they are not required to eat lunch in the break
room. (Def. SOF ¶ 68.) Plaintiff chose to attend the third lunch
break. (Def. SOF ¶ 68.)
Plaintiff claims that Rob Lebb had a policy of telling
African-American Selectors who were talking at work to stop, but
allowing Caucasian Selectors to continue socializing. (Def. SOF
¶ 75.) On one occasion in 2006 or 2007, a supervisor told
Plaintiff and another African-American Selector to stop talking
and return to work but, on another occasion, Plaintiff witnessed
the same supervisor permitting Caucasian Selectors to continue
speaking. (Def. SOF ¶ 76.) Plaintiff admits that he should not
have been talking during work hours. (Def. SOF ¶ 76.) Plaintiff
9
testified that he once saw another supervisor tell two AfricanAmerican Selectors who were talking to return to work while
allowing Caucasian Selectors to continue talking. (Def. SOF ¶
77.)
Plaintiff claims that, on one occasion, he saw Caucasian
Selectors sent home for misconduct and then called back by
Conway. (Def. SOF ¶ 78.) He also claims that, on one occasion,
an African-American Selector was sent home for misconduct and
not called back, but he admits that he does not know whether the
African-American Selector was called back and does not know what
the African-American Selector did that caused him to be sent
home. (Def. SOF ¶ 78.) Plaintiff also admits that the AfricanAmerican Selector does not claim that he was sent home because
of racial reasons. (Def. SOF ¶ 78.)
Plaintiff believes that African-American Selectors received
more disciplinary write-ups than Caucasian Selectors and were
disciplined for mispicks that they did not actually have. (Def.
SOF ¶ 79.) He testified that he “know[s]” Caucasian Selectors
were disciplined less often “by them not complaining like
everybody else.” (Pl. Dep. 200:16-17.) He admits this belief is
based solely on perception, the speculation of other coworkers,
and hearing certain names called over the warehouse intercom.
(Def. SOF ¶ 79.) Plaintiff does not know for a fact that white
10
employees were disciplined less often. (Pl. Dep. 203:25-204:2)
He also has “no proof” that African-Americans were written up
for mispicks they did not have. (Pl. Dep. 204:10-13.) Plaintiff
is aware of at least one Caucasian Selector who received “a lot
of mispicks,” and at least two Caucasian employees complained to
Plaintiff that they received mispick discipline that they did
not deserve. (Def. SOF ¶¶ 80-81.) Plaintiff also perceived that
he was disciplined for lateness when Caucasian employees were
not. (Pl. Dep. 51:12-15.)
US Foods never told Plaintiff that he was being terminated
or that his job was threatened because of his race. (Def. SOF ¶
85.)
e. Plaintiff’s FMLA Usage
US Foods has an FMLA policy stating “[it] is the policy of
US Foods . . . not to discharge or discriminate against any
employee exercising his or her rights under the Federal Family
and Medical Leave Act” and instructing employees who believe
that they have been treated unfairly to contact the Division
President or the President of Human Resources. (Def. SOF ¶ 22.)
US Foods never prevented Plaintiff from taking FMLA leave.
(Pl. Dep. 40:6-8.) Plaintiff began taking FMLA leave in 2006.
(Def. SOF ¶ 23.) He was granted an FMLA leave of absence
beginning on August 28, 2006, and he did not return to work for
11
the remainder of the year, thus taking more than 12 weeks of
FMLA leave. (Def. SOF ¶ 23.) He returned to work at his same
position on January 9, 2007. (Def. SOF ¶ 23.) In 2007, Plaintiff
took eight days of intermittent FMLA leave. (Def. SOF ¶ 24.) In
March 2009, Plaintiff was approved for intermittent FMLA leave
from February 23, 2009 to July 22, 2009 and, during that time
period, he took at least 11 FMLA leave days. (Def. SOF ¶ 25.) In
July 2009, Plaintiff requested approval for another period of
intermittent FMLA leave from July 23, 2009 through December 20,
2009, and he took at least 10 days of leave during that period.
(Def. SOF ¶ 25.) During the first two months of 2010, Plaintiff
took at least 14 FMLA leave days. (Def. SOF ¶ 26.) He was then
approved to take intermittent FMLA leave from March 10, 2010
through September 9, 2010, and he took at least 18 more FMLA
leave days during that period. (Def. SOF ¶ 26.)
Plaintiff’s termination occurred during a designated FMLA
period. (Pl. Counter SOF ¶ 2.) Plaintiff believed that his
termination was based on his FMLA leave “because [he] was on
FMLA.” (Def. SOF ¶ 27.) Plaintiff’s employment was never
directly threatened because of his FMLA usage. (Pl. Response to
Def. SOF ¶ 28.)
According to Plaintiff, Darwin Moore, another US Foods
employee who was terminated and filed a lawsuit alleging FMLA
12
and NJLAD violations, heard Rob Lebb tell employees that they
were working more because of their “FMLA buddies” and encouraged
employees to call people who were on FMLA leave and tell them to
return to work. (Pl. Counter SOF ¶ 14.) Moore also testified
that Lebb once said “these motherfuckers on FMLA [were] the
reason [employees were] working . . . overtime.” (Pl. Counter
SOF ¶ 15.)
Moore testified that an employee named Pete had his
job threatened when he took FMLA leave. (Pl. Counter SOF ¶ 27.)
Plaintiff also heard Conway refer once to the FMLA as the
“fraudulent medical leave act.” (Pl. Counter SOF ¶ 25.)
f. US Foods’ Anti-Harassment Measures
US Foods maintains a non-discrimination policy that
prohibits unlawful discrimination based on, inter alia, race.
(Def. SOF ¶ 2.) US Foods also provides annual training to its
employees, supervisors, and management on its non-discrimination
policy, anti-harassment policy, and policy prohibiting
retaliation. (Def. SOF ¶ 2.)
US Foods maintains a toll-free Check-In Line that employees
may use to anonymously report unlawful discrimination,
harassment, or retaliation. (Def. SOF ¶ 4.)
On his day of hire, Plaintiff signed a form acknowledging
that he read and understood US Foods’ Equal Opportunity Policy
and agreed to “immediately report any perceived violations of
13
[that policy] to [his] supervisor or the Human Resources
Department.” (Def. SOF ¶ 5.)
US Foods’ Selectors are represented by Local No. 169 of the
Teamsters Union. (Def. SOF ¶ 6.) Unionized Selectors may lodge
complaints or grievances through their union. (Def. SOF ¶ 7.)
During Plaintiff’s employment, William Anthony, an AfricanAmerican man, was the union steward. (Def. SOF ¶ 8.)
Plaintiff never reported Conway’s conduct to Human
Resources. (Pl. Dep. 53:24-54:1.) He never called the Check-In
line. (Pl. Dep. 257:17-19.)
B. Plaintiff’s Claims
Plaintiff claims that his termination constituted unlawful
interference with his FMLA rights and unlawful termination in
retaliation for exercising his FMLA rights. Plaintiff also
asserts claims for hostile work environment and unlawful
termination under the NJLAD. Plaintiff seeks damages, including
punitive damages.
C. Jurisdiction
The Court has original jurisdiction pursuant to 28 U.S.C. §
1331 for the claims arising under federal law and supplemental
jurisdiction pursuant to 28 U.S.C. § 1367(a) for the claims
arising under state law.
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D. Parties’ Arguments
Defendant US Foods seeks summary judgment on all claims,
arguing that: US Foods never denied Plaintiff FMLA leave to
which he was entitled; Plaintiff cannot show a nexus between his
FMLA leave and his termination; due to Plaintiff’s failure to
rebuild the leaning pallet, Plaintiff was not meeting US Foods’
legitimate expectations; US Foods had a legitimate, nondiscriminatory reason for the termination; the conduct allegedly
supporting Plaintiff’s hostile work environment claim is
unsupported by admissible evidence and is legally insufficient;
and US Foods had effective anti-harassment policies that
Plaintiff did not use.
In opposition, Plaintiff argues that he has direct evidence
of animus; a reasonable jury could conclude that his race and/or
FMLA usage factored into US Foods’ decision to terminate him;
other employees engaged in similar or worse conduct without
being terminated; his failure to rebuild the pallet should have
been characterized as failure to follow instructions, not
insubordination; a reasonable jury could find that the
harassment he endured was severe and/or pervasive; and other
persons in protected classes suffered harassment and
discrimination.
15
In Reply, US Foods argues that the alleged evidence of
discriminatory and anti-FMLA animus is unrelated to the
decision-making process behind Plaintiff’s termination, there is
no direct evidence, and none of the comparator employees are
similarly situated.
III. ANALYSIS
A. Standard of Review
The Court “shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Essentially, “summary
judgment will not lie if the dispute about a material fact is
‘genuine,’ that is, if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id.
Parties must support their factual positions by “citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations . . ., admissions,
interrogatory answers, or other materials.” Fed. R. Civ. P.
56(c)(1)(A). The Court must “draw all reasonable inferences in
16
favor of the non-movant.” Kowalski v. L & F Products, 82 F.3d
1283, 1288 (3d Cir. 1996). The time for completing discovery
under the Court’s scheduling orders expired and no party asserts
that additional discovery is needed.
B. Plaintiff’s Unlawful Termination Claims Fail
Summary judgment will be granted on Plaintiff’s unlawful
termination claims under both the FMLA and the NJLAD because
Plaintiff has not shown prima facie discrimination and because a
reasonable jury could not find that US Foods’ reason for
Plaintiff’s termination was pretextual.2
If Plaintiff presents direct evidence, then “the employer
must prove that it would have fired the plaintiff even if it had
not considered his [race or FMLA usage].” Fakete v. Aetna, Inc.,
308 F.3d 335, 338 (3d Cir. 2002). Direct evidence is “evidence
of discriminatory attitudes about [FMLA or race] that were
causally related to the decision to fire [Plaintiff].” Glanzman
2
The Court will analyze Plaintiff’s unlawful termination claims
together because, under both the FMLA and the NJLAD, the Court
examines whether the employer had a legitimate, nondiscriminatory basis for the termination. See, e.g., Brown v. DB
Sales, Inc., Civ. 04-1512, 2005 WL 3591533, at *6 (E.D. Pa. Dec.
29, 2005) (“If Plaintiff is able to successfully establish prima
facie cases of both race discrimination claim and FMLA
retaliation, both claims will be analyzed using the McDonnell
Douglas three-stage burden shifting framework”); Sarnowski v.
Air Brooke Limousine, Inc., 510 F.3d 398, 403 (3d Cir. 2007)
(“In applying the [NJ]LAD, . . . courts use the same burdenshifting framework . . . adopted in McDonnell Douglas”).
17
v. Metro. Mgmt. Corp., 391 F.3d 506, 512 (3d Cir. 2004).
“[S]tatements made by non-decision makers or by a decision maker
unrelated to the decisional process itself are not direct
evidence.” Id. at 513 (citing Price Waterhouse v. Hopkins, 490
U.S. 228, 277 (1989)). In Glanzman, for example, the Third
Circuit held that the plaintiff’s supervisor’s statement to two
of her coworkers that he “wanted to fire her and ‘replace her
with a young chippie with big tits’” was direct evidence.
Glanzman, 391 F. 3d at 510.
Plaintiff has not produced any evidence of discriminatory
attitudes causally related to the termination decision. For
example, he has not adduced any evidence of comments from
Conway, Lebb, or Hutter that Plaintiff should be terminated
because of his race or his FMLA usage. Even if Plaintiff had
produced direct evidence, US Foods has shown, as discussed
infra, that it would have terminated Plaintiff because of his
insubordination and his lack of remorse.
Absent direct evidence, “[i]f circumstantial evidence of
[FMLA or race] discrimination is used, then the proponent of the
evidence must satisfy the three-step test of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).” Glanzman, 391 F.3d at 512.
To establish a prima facie discriminatory discharge case
under the McDonnell Douglas framework in New Jersey, the
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plaintiff must demonstrate: “(1) that plaintiff is in a
protected class; (2) that plaintiff was otherwise qualified and
performing the essential functions of the job; (3) that
plaintiff was terminated; and (4) that the employer thereafter
sought similarly qualified individuals for that job.” Victor v.
State, 203 N.J. 383, 409 (2010). Plaintiff “is African–American,
which is a protected class,” and US Foods fired him. Wilcher v.
Postmaster Gen., 441 F. App'x 879, 881 (3d Cir. 2011). But
Plaintiff has not established the third element of the prima
facie case, i.e., that he was performing the essential functions
of the job. Plaintiff admitted that he did not follow Conway’s
order to fix the leaning pallet, leaning pallets are unsafe, and
insubordination is a terminable offense. Therefore, Plaintiff
has not established a prima facie discriminatory discharge case.
The prima facie requirements for an FMLA retaliation claim
are similar: “(1) he took an FMLA leave, (2) he suffered an
adverse employment decision, and (3) the adverse decision was
causally related to his leave.” Conoshenti v. Pub. Serv. Elec. &
Gas Co., 364 F.3d 135, 146 (3d Cir. 2004). Plaintiff was on an
intermittent FMLA leave period when he was terminated and his
termination is an adverse employment decision. Plaintiff has
not, however, shown that there was any connection between his
termination and his FMLA usage. Plaintiff has been using FMLA
19
leave intermittently since 2004 without any adverse employment
impacts, and “the Court is persuaded by evidence of Defendant's
history of approving the Plaintiff's . . . FMLA leave that it
did not act with discriminatory motive in firing the Plaintiff.”
Yashenko v. Harrah's NC Casino Co., LLC, 352 F. Supp. 2d 653,
662 (W.D.N.C. 2005), aff'd, 446 F.3d 541 (4th Cir. 2006).
Plaintiff’s unlawful termination claims therefore fail because
Plaintiff has not established prima facie cases under the NJLAD
or FMLA.
Even if Plaintiff had established a prima facie case of
FMLA or race discrimination, Plaintiff’s claims would not
survive the remaining steps in the McDonnell Douglas analysis.
After the prima facie step, “the burden shifts to the defendant
to rebut the proof of discrimination by articulating some
legitimate, nondiscriminatory reason for the employee's
discharge.” Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir.
1989). The plaintiff may then show that “the alleged reasons
proffered by the defendant were pretextual and that the
defendant intentionally discriminated . . . .” Id. To show
pretext, Plaintiff must submit evidence which: “1) casts
sufficient doubt upon each of the legitimate reasons proffered
by the defendant so that a factfinder could reasonably conclude
that each reason was a fabrication; or 2) allows the factfinder
20
to infer that discrimination was more likely than not a
motivating or determinative cause . . . .” Fuentes v. Perskie,
32 F.3d 759, 762 (3d Cir. 1994).
A reasonable jury could not conclude that Defendant
fabricated the reasons, i.e., insubordination and lack of
remorse, for the termination. Plaintiff has admitted the
following facts: the crab-leg pallet was leaning; leaning
pallets are unsafe; his supervisor Jack Conway directed him to
rebuild the pallet; instead of following Conway’s order,
Plaintiff switched the leaning pallet with a different one;
insubordination includes the failure to follow a direct order;
and insubordination subjects an employee to immediate
termination. Based on Plaintiff’s admissions, there is no
factual dispute that Plaintiff was insubordinate and that his
insubordination subjected him to termination.
Plaintiff argues that he apologized to Conway at the
meeting after the incident and, therefore, there is a disputed
issue of material fact as to whether he showed remorse. The
Court finds that there is no factual dispute because, in his
statement of facts, Plaintiff stated that he “was never
insubordinate.” (Pl. Response Def. SOF ¶ 62.) Plaintiff’s union
shop steward testified that, at the meeting after the crab-leg
incident, Plaintiff “wasn’t really remorseful . . . . Kept
21
saying he indicated that he felt his way was better than the
company’s way. He did not show no remorse in that meeting, no.
He actually thought he was not doing nothing wrong.” (Anthony
Dep. 60:21-61:2.) Moreover, Defendant perceived that Plaintiff
was not remorseful, and “[w]hat is at issue is the perception of
the decision maker, not the plaintiff's view . . . .” Brown v.
DB Sales, Inc., Civ. 04-1512, 2005 WL 3591533, at *5 (E.D. Pa.
Dec. 29, 2005). Even if Defendant wrongfully perceived that
Plaintiff was not remorseful, that erroneous perception would
not show that Defendant acted with discriminatory intent.3
Plaintiff also argues that his conduct should be
characterized as failure to follow instructions, which is not a
terminable offense, rather than insubordination. Frank Keyser,
the day warehouse manager who was not involved with Plaintiff’s
termination, testified that “failure to follow instruction would
be if you are instructed to do something, to fix something, and
you proceed not to do it . . . insubordination would be if you
are told to do it, and you start getting hostile with me,
refusing to do it . . . .” Plaintiff’s counsel asked Keyser to
3
Moreover, US Foods notes that it was lenient in disciplining
Plaintiff for his mispick record. US Foods removed mispick
disciplinary letters from Plaintiff’s file and offered him
training opportunities. This leniency shows a lack of
discriminatory animus.
22
classify the misconduct when an employee “is advised or told or
instructed to unload or repackage a pallet, and in his mind he
thinks it is better to restock and pull out a new, a different
package.” (Keyser Dep. 64:10-14.) Keyser responded that “[j]ust
in that scenario you gave me, I would say that would be failure
to follow instructions.” (Keyser Dep. 64:19-21.) Plaintiff’s
counsel did not mention a leaning pallet in his hypothetical.
Defendant’s counsel asked, “If a warehouse employee had a
leaning skid and was told to rebuild that skid, and instead of
rebuilding that skid, took it upon himself to return that skid
back to the freezer and take a new skid, would that be
considered insubordination?” (Keyser Dep. 97:18-24.) Keyser
responded, “Yes.” In other words, when Keyser was presented with
a hypothetical accurately reflecting the present facts, he
classified Plaintiff’s behavior as insubordination.
Moreover, the Rules specify that insubordination
“includ[es] the failure to follow a direct order from a
supervisor/manager.” (Def. SOF ¶ 12.) It is undisputed that
Conway ordered Plaintiff to rebuild the leaning pallet and that
Plaintiff did not do so. The record supports US Foods’ decision
to classify Henson’s conduct in the crab-leg incident as
insubordination.
23
Moreover, even if US Foods did mistakenly classify
Plaintiff’s conduct as insubordination, Plaintiff has not
adduced any evidence indicating that discriminatory animus was a
factor behind such a mistake. “To discredit the employer's
proffered reason, however, the plaintiff cannot simply show that
the employer's decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent, or
competent.” Fuentes v. Perskie, 32 F.3d at 765. Anthony, the
union shop steward, implied that the classification may have
been erroneous: When asked the reason for Plaintiff’s
termination, Anthony, testified that his “interpretation” was
that Plaintiff “failed to follow instructions, but
insubordination, I don’t know.” (Anthony Dep. 37:11-18.) But
when he was asked whether race had an effect on Plaintiff’s
discipline, Anthony testified “No. No. Not here, no. Not in
front of me . . . no, and I’m an African-American.” (Anthony
Dep. 38:25-39-2.) There is ample evidence supporting US Foods’
decision to classify Plaintiff’s behavior as insubordination
and, even if the classification was inappropriate, there is no
evidence indicating that the classification was based on
discriminatory animus.
24
Plaintiff attempts to show pretext by arguing that
similarly situated employees were not terminated despite conduct
that was insubordinate or otherwise problematic. “[T]o be
considered similarly situated, comparator employees must be
similarly situated in all relevant respects . . . tak[ing] into
account factors such as the employees’ job responsibilities, the
supervisors and decision-makers, and the nature of the
misconduct engaged in.” Wilcher, 441 F. App'x at 882 (citations
omitted). In terms of the misconduct, the comparators must have
“engaged in similar conduct without such differentiating or
mitigating circumstances as would distinguish their conduct or
the employer's treatment of them.” Opsatnik v. Norfolk S. Corp.,
335 F. App'x 220, 223 (3d Cir. 2009).
None of Plaintiff’s examples are similarly situated in all
relevant respects. Plaintiff cites employees whose misconduct
was wholly dissimilar, including employees who were dishonest,
falsified company documents, damaged company property, testified
positive for controlled drug substances, or missed work days. At
oral argument, Plaintiff emphasized that these comparators are
appropriate because their conduct was worse than Plaintiff’s
conduct, but their discipline was less severe. Plaintiff has not
cited any case law allowing comparators whose misconduct was
wholly dissimilar. Even if the comparators were appropriate,
25
there is some distinguishing evidence. For example, the employee
who tested positive for controlled drug substances “was
reinstated after he voluntarily enrolled in a rehabilitation
program and in light of the fact that he had been with the
company for more than 15 years without any other disciplinary
action in his personnel file.” (Def. Responses to Pl. Counter
SOF ¶ 49.) Furthermore, even if Plaintiff “has identified
several individuals who committed violations of either such
frequency or severity that they could have been discharged . . .
these comparators do not create a genuine issue of material
fact. [Plaintiff]’s comparator evidence does not cast doubt on
[Defendant]’s otherwise satisfactory explanation for his
termination.” Opsatnik, 335 F. App'x at 224.
Plaintiff also cites examples of employees who were
insubordinate by refusing to complete work that a supervisor had
assigned to them. The insubordinate comparators are also inapt
because none of them refused to comply with an order, left an
unsafe condition, and lacked remorse. For example, Lebb
explained that one of the employees was remorseful during the
grievance process: he “realized what he had done was
inappropriate and . . . was very, very apologetic for what he
had done and then was honest of what happened so we took it into
consideration and we reinstated him.” (Lebb Dep. 27:9-15.) The
26
other insubordinate comparator “came back and said I’ll do the
work I shouldn’t of refuse it, let me have the work . . . .”
(Lebb Dep. 17:9-11.) In both of these examples, therefore, US
Foods management perceived that the insubordinate employee was
remorseful. By contrast, Plaintiff continues to insist that his
behavior was appropriate. Plaintiff’s comparator evidence is
inadequate to show pretext.
Plaintiff also attempts to show pretext by citing anti-FMLA
and racially discriminatory comments, such as Conway’s comment
about African-American employees eating grape soda and chicken
or Conway’s reference to the FMLA as the fraudulent medical
leave act. These comments do not show pretext because “[s]tray
remarks by non-decisionmakers or by decisionmakers unrelated to
the decision process are rarely given great weight, particularly
if they were made temporally remote from the date of decision.”
Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545
(3d Cir. 1992). Conway’s remarks are offensive, but a reasonable
jury could not find that the comments were especially directed
at Plaintiff or that they indicate that Conway planned to
terminate African-American or FMLA employees more frequently.
In Moore v. U.S. Foodservice, Civ. 11-2460, 2013 WL 5476405
(D.N.J. Sept. 30, 2013), another US Foods employee, Darwin
Moore, brought claims for FMLA interference and retaliation
27
against US Foods. The Moore court examined some of the same
evidence of anti-FMLA sentiment, including Moore’s contentions
that
At pre-shift meetings, . . . Robert Lebb, Director of
Operations, would tell the employees they were working
more because of their “FMLA buddies” and encouraged
employees to call those out on FMLA, to tell them to
come to work. Mr. Lebb's other pejoratives included
“FMLA brothers” and that “these motherfuckers on FMLA
[were] the reason [employees were] working . . .
overtime.”
Mr.
Lebb
specifically
referred
to
[Defendant] needing to expend resources for overtime
because employees were utilizing FMLA.
Id. at *8, n.4 (citations to Moore dep. omitted). The Moore
court held that “there is no support in the record for
Plaintiff's claim that Defendant terminated his employment in
retaliation for taking FMLA leave. Rather, Plaintiff exceeded
the number of unexcused absences allowed by his employer, . . .
which ultimately resulted in Plaintiff’s termination.” Id. at
*8. Similarly, in the present case, Plaintiff has not adduced
any evidence that discriminatory or retaliatory animus motivated
Defendant’s decision to terminate him.
Plaintiff argues that “[a] reasonable jury can also
discredit the asserted reason for termination because the
Manager who made the allegation was Jack Conway.” (Pl. Opp’n at
10.) Plaintiff asserts that Conway is not credible because he
28
was terminated for dishonesty and theft and showed
discriminatory animus based on Plaintiff’s race and FMLA usage.
The Court finds that a reasonable jury could not find that
Conway’s allegations surrounding the insubordination incident
were false: Plaintiff admits that he disobeyed Conway’s order
and continues to argue that his conduct was appropriate. The
relevant facts that formed the basis of Plaintiff’s termination,
i.e., Plaintiff’s refusal to follow a direct order and his lack
of remorse, are not disputed. Likewise, Plaintiff’s poor work
history of multiple citations for mispicks is not disputed, none
of which turns on Conway’s credibility. At oral argument,
Plaintiff’s counsel argued that Conway was a decisionmaker in
the termination process and that Conway’s private meeting with
Lebb indicates the possibility that Conway advocated for
termination based on discriminatory animus. There is no evidence
in the record regarding what Lebb and Conway discussed and the
mere fact that they met does not create a disputed issue of
material fact, especially when Plaintiff has admitted the facts
that show insubordination.
The Court will grant summary judgment to Defendant US Foods
on Plaintiff’s NJLAD and FMLA unlawful retaliation claims
because Plaintiff failed to establish prima facie cases of
discrimination for either claim and, even if he had passed the
29
prima facie threshold, he has not shown that US Foods’ stated
non-discriminatory reasons for the termination, i.e.,
insubordination and lack of remorse, were pretextual.
C. Plaintiff’s FMLA Interference Claim Fails
Section 2615(a)(1) of the FMLA makes it “unlawful for any
employer to interfere with, restrain, or deny the exercise of or
the attempt to exercise, any right provided under this
subchapter.” 29 U.S.C. § 2615(a)(1). “In order to assert a claim
of interference, an employee must show that he was entitled to
benefits under the FMLA and that his employer illegitimately
prevented him from obtaining those benefits.” Sarnowski v. Air
Brooke Limousine, Inc., 510 F.3d 398, 401 (3d Cir. 2007).
Plaintiff has not shown that US Foods ever denied him FMLA leave
to which he was entitled.
Plaintiff also argues that the termination constituted
interference with his FMLA rights because he was on an
intermittent FMLA leave period when the termination occurred.
But “‘[t]he FMLA is not a shield to protect employees from
legitimate disciplinary action by their employers if their
performance is lacking in some manner unrelated to their FMLA
claim.’” Brown v. DB Sales, Inc., Civ. 04-1512, 2005 WL 3591533,
at *11 (E.D. Pa. Dec. 29, 2005) (quoting Cohen v. Pitcairn Trust
30
Co., 2001 U.S. Dist. LEXIS 10876, at *30 (E.D. Pa. June 20,
2001)). As discussed above, US Foods had a legitimate, nondiscriminatory reason for terminating Plaintiff, which has not
been discredited by evidence that a reasonable factfinder could
determine to be pretextual. That Plaintiff was on intermittent
leave status when he was insubordinate at work by refusing to
follow the repeated orders of his supervisor does not shield him
from the termination decision. His refusal to follow the orders
and his lack of remorse had nothing to do with his intermittent
FMLA leave status.
The Court will grant summary judgment on Plaintiff’s FMLA
interference claim.
D. Plaintiff’s Hostile Work Environment Claim Fails
To establish an NJLAD hostile work environment claim,
Plaintiff must show that “(1) the conduct complained of was
unwelcome; (2) that it occurred because of the plaintiff's
inclusion in a protected class under the LAD; and (3) that a
reasonable person in the same protected class would consider it
sufficiently severe or pervasive to alter the conditions of
employment and create an intimidating, hostile, or offensive
work environment.” El-Sioufi v. St. Peter's Univ. Hosp., 382
N.J. Super. 145, 178 (App. Div. 2005). “[N]ot every offensive
remark, even if direct, is actionable . . . epithets or comments
31
which are merely offensive will not establish a hostile work
environment claim.” Id. (citations omitted). To determine
whether an environment is hostile or abusive, the Court must
“look[] at all the circumstances, which may include the
frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a merely
offensive utterance; and whether it unreasonably interferes with
an employee's work performance.” Id. (citations omitted).
“Neither rude and uncivil behavior nor offensive comments alone
create a hostile work environment under the LAD.” Shaw v. FedEX
Corp., A-1634-10T3, 2012 WL 3116722, at *5 (N.J. Super. Ct. App.
Div. July 20, 2012).
Plaintiff’s hostile work environment claim is based on (1)
the comments of his supervisor Jack Conway, and (2) Plaintiff’s
perception that African-American employees were treated less
favorably than Caucasian employees because African-Americam
employees were not permitted to socialize during work hours and
were targeted for mispick discipline.
Conway’s comments are insufficient to establish a hostile
work environment claim. Plaintiff alleges that Conway made
comments during the third lunch break in which Conway joked
about African-Americans’ genital sizes and watching basketball,
asked the employees if they were eating chicken and grape soda,
32
called the lunch break the “BET lunch” in reference to Black
Entertainment Television, and made comments about Conway’s own
African-American stepchildren listening to rap music.
Plaintiff has not alleged that these comments interfered
with his work performance and, therefore, he fails to establish
an essential element of a hostile work environment claim.
Moreover, Plaintiff has acknowledged that the comments occurred
during the third lunch break; that many of the comments stemmed
from Conway’s banter with another employee, who is AfricanAmerican; that Plaintiff had multiple lunch break options; and
that Plaintiff was not required to eat his lunch in the break
room. While Conway’s comments could certainly be perceived as
offensive, a reasonable jury would not find that these lunchroom
comments and banter created a work environment that was
sufficiently severe or pervasive to alter the conditions of
employment for Plaintiff as an African-American.
Plaintiff has not adduced any evidence to support his claim
that African-American employees were disciplined more
frequently. For example, Plaintiff testified that he “know[s]”
Caucasian Selectors were disciplined less often “by them not
complaining like everybody else.” (Pl. Dep. 200:16-17.) But he
admits this belief is based solely on perception, the
speculation of other coworkers, and hearing certain names called
33
over the warehouse intercom. (Def. SOF ¶ 79.) He has “no proof”
that African-Americans were written up for mispicks they did not
have. (Pl. Dep. 204:10-13.) Plaintiff has not adduced competent
evidence to support his claims of disparate treatment.
“Perception like speculation and suspicion cannot support a
cause of action.” Mandel v. UBS/PaineWebber, Inc., 373 N.J.
Super. 55, 79 (App. Div. 2004).
Furthermore, US Foods had various anti-harassment
mechanisms, and the existence of such mechanisms can mitigate an
employer’s liability. The New Jersey Supreme Court has held that
a plaintiff may show that an employer was negligent by
its failure to have in place well-publicized and
enforced anti-harassment policies, effective formal
and informal complaint structures, training, and/or
monitoring mechanisms. We do not hold . . . that the
presence of such mechanisms demonstrates the absence
of negligence. However, the existence of effective
preventative mechanisms provides some evidence of due
care on the part of the employer.
Lehmann v. Toys R Us, Inc., 132 N.J. 587, 621 (1993); cf. Gaines
v. Bellino, 173 N.J. 301, 320 (2002) (“A defendant is entitled
to assert the existence of an effective anti-sexual harassment
workplace policy as an affirmative defense to vicarious
liability”). Multiple factors can show an employer’s commitment
to preventing a hostile work environment:
A company that develops policies reflecting a lack of
tolerance for harassment will have less concern about
34
hostile work environment or punitive damages claims if
its good-faith attempts include periodic publication
to workers of the employer's anti-harassment policy;
an effective and practical grievance process; and
training
sessions
for
workers,
supervisors,
and
managers about how to recognize and eradicate unlawful
harassment.
Cavuoti v. New Jersey Transit Corp., 161 N.J. 107, 121 (1999).
Evidence in the record shows that US Foods satisfied many
of these factors. US Foods had an anti-discrimination policy,
annual training, and remedial mechanisms for reporting
complaints. It also had a toll-free Check-In Line that employees
could use to anonymously report unlawful discrimination,
harassment, or retaliation. (Def. SOF ¶ 4.) On his day of hire,
Plaintiff signed a form acknowledging that he read and
understood the Equal Opportunity Policy and agreed to
“immediately report any perceived violations . . . to [his]
supervisor or the Human Resources Department.” (Def. SOF ¶ 5.)
US Foods cited the declaration of William Nunan, the Human
Resources Manager for US Foods’ Philadelphia Division to show
that US Foods provides annual training on its nondiscrimination, anti-harassment, and anti-retaliation policies
to its employees, supervisors, and management. (Nunan Decl. ¶
6.) Plaintiff appeared to deny this fact because “management was
aware of Jack Conway’s harassment / retaliation.” (Pl. Response
Def. SOF ¶ 2.) Plaintiff did not provide any evidence indicating
35
that US Foods did not provide these annual trainings. At oral
argument, Plaintiff questioned the training but, again, did not
cite to any evidence in the record. Plaintiff has not adduced
any evidence indicating that the complaint mechanisms were
ineffective, that complaints were ignored, that the policies
were not published, or that the training sessions were
inadequate or nonexistent.
Plaintiff admits that he did not use any of US Foods’ antiharassment programs and remedial measures. This failure to use
the remedial mechanisms, along with the other factors discussed
supra, supports granting summary judgment for US Foods. See
Gibson v. State - Office of Attorney Gen., A-1426-05T2, 2007 WL
737748, at *14 (N.J. Super. Ct. App. Div. Mar. 13, 2007) (“As
there is ample evidence . . . demonstrating defendants created
and provided . . . avenues to address and remedy violations, and
that plaintiff failed to avail herself of those available
remedies . . ., the motion judge did not err when he found that
the complaint should be dismissed as a matter of law”); Ahmed v.
Interstate Mgmt. Co., Civ. 11-683, 2012 WL 3038523, at *18
(D.N.J. July 25, 2012) (granting summary judgment on NJLAD
hostile work environment claim because “[a]s Defendant had
effective anti-harassment policies in place and responded to
complaints brought to its attention, a reasonable jury could not
36
find Defendant liable on a hostile work environment claim based
on allegedly discriminatory comments made by his coworkers that
Plaintiff did not report”).
Plaintiff argues that Barnes v. Office Depot, Inc., Civ.
08-1703, 2009 WL 4133563 (D.N.J. Nov. 24, 2009), stands for the
proposition that “[w]hen a defendant contends that it had in
place policies and procedures addressing anti-harassment, the
Court has held that whether said policies or responses
constituted a good faith effort to comply with a statute is
something that is best left to the jury.” (Pl. Opp’n at 23.) The
Barnes court found, however, that “the record indicates
unwillingness to respond to complaints submitted by the
plaintiff by high level Office Depot employees” and, therefore,
that “[w]hether Office Depot made a good faith effort to comply
with Title VII and to respond to complaints made by Ms. Barnes
is a question of fact best left to a jury.” Barnes v. Office
Depot, 2009 WL 4133563, at *15. In this case, there is quite
plainly no evidence that plaintiff made any complaints and no
evidence that US Foods was unresponsive to others’ complaints.
Plaintiff cites Shepherd v. Hunterdon Developmental Center,
174 N.J. 1 (2002), in which the New Jersey Supreme Court
reversed summary judgment on a hostile work environment claim,
and argues that “[t]he facts here far exceed what occurred in
37
Shepherd.” (Pl. Opp’n at 18.) In Shepherd, the plaintiffs had
supported a lawsuit that their coworkers had brought against
their supervisors. The Shepherd plaintiffs argued that, when
their coworkers’ lawsuit began, the supervisors “began a pattern
of ill treatment and ultra-critical supervision,” including
statements that the supervisors “were going to watch everything
that you . . . do” and that “what goes around comes around and
you will be sorry for not writing better statements for us
concerning the lawsuit.” Id. at 9. The plaintiffs sent complaint
letters to the superintendent and filed discrimination
complaints with the Department of Human Services. The teachings
of Shepherd are not applicable to the present case, where
Plaintiff never filed any complaints regarding racial
discrimination and where Plaintiff has not adduced any evidence
indicating that US Foods’ supervisors threatened him.
A reasonable jury could not find that Plaintiff was subject
to a hostile work environment because (1) while Conway’s
comments were offensive, they did not impair Plaintiff’s work
performance, (2) Conway’s comments occurred during an optional
lunch break and were primarily in the context of banter with
other African-American employees, (3) Plaintiff lacks competent
evidence supporting his perception that African-American
employees were subject to different disciplinary and deportment
38
standards, and (4) Plaintiff failed to use US Foods’ antiharassment remedial measures and has not shown that US Foods’
trainings were inadequate. The Court will grant summary judgment
on Plaintiff’s hostile work environment claim.
V. CONCLUSION
The Court will grant summary judgment for Defendant on
Plaintiff’s claims for unlawful interference with his FMLA
rights, unlawful termination in retaliation for exercising his
FMLA rights, hostile work environment under the NJLAD, and
unlawful termination under the NJLAD. Because summary judgment
will be granted on all claims, final judgment is entered for
Defendant. Because no named Defendants remain in this action,
the Court will instruct the Clerk of Court to close this matter.
November 19, 2013
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
39
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