VICTORIA v. FLUOR ENTERPRISES, INC.

Filing 35

OPINION. Signed by Judge Noel L. Hillman on 10/2/2015. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

RAMON M. VICTORIA,
Plaintiff,

CIVIL NO. 13-7587 (NLH)(KMW)

v.
OPINION
FLUOR ENTERPRISES, INC.,
Defendant.

APPEARANCES:
STEPHEN LEDVA, JR.
MINTZER SAROWITZ ZERIS LEDVA & MEYERS
2070 SPRINGDALE ROAD
SUITE 400
CHERRY HILL, NJ 08003
On behalf of Plaintiff
FANNY ANN FERDMAN
Baker & Hostetler, LLP
45 Rockefeller Plaza
New York, NY 10012
On behalf of Defendant
HILLMAN, District Judge
This matter has come before the Court on the motion of
Defendant Fluor Enterprises, Inc. for summary judgment on
Plaintiff’s claims that defendants violated his rights under 42
U.S.C. § 1981, the New Jersey Law Against Discrimination, N.J.S.A.
10:5-12, and acted negligently in supervising its employees.
Plaintiff contends he was terminated from his employment based on
his race and national origin.

For the reasons set forth below,

Fluor’s motion will be granted.
I.

BACKGROUND
Plaintiff, Ramon Victoria, was born in Santo Domingo, Dominican

Republic, and came to the United States in 1979.

See Def.’s L. Civ.

R. 5.1 Statement of Undisputed Facts (“SMF”) ¶ 15.1

He previously

worked for Fluor (then known as Daniels) on and off from 1982 to
1992 and from 2005 to 2006, but was laid off due to reductions in
force (“RIFs”).

SMF ¶ 8 (citing Ferdman Dec., Ex. DD, Pl.’s Dep.

29:16-22; 33:19-22).
Plaintiff was rehired by Fluor in September 2009 as an
“Insulator Mechanic Journeyman” at Fluor’s Chamber Works location in
Deepwater, New Jersey.

SMF ¶¶ 6, 27.

The majority of the 26

insulators working with Plaintiff were of Hispanic descent.
32.

SMF ¶

Plaintiff testified his direct supervisors, Marino Santocoloma

and Alberto DeJesus, were Colombian.

SMF ¶ 32 (citing Pl.’s Dep.

261:11-262:3).
The following chronological history is relevant to Plaintiff’s
claims.

On October 4, 2011, Plaintiff received a written reprimand

for exceeding the number of days he was permitted to be absent
within the calendar year.

SMF ¶ 121.

One week later, Plaintiff’s

brother notified Sandra Donnelly, a Human Resources specialist at
Fluor’s nearby Edge Moor site, that Plaintiff wanted to speak with

1

All of Defendant’s material facts cited by the Court are
undisputed.

her.

SMF ¶ 122.
Plaintiff and Donnelly spoke on the phone on October 10 or 13,

2011.2

During that call, Plaintiff told Donnelly that he believed

the scaffolds at his job site were unsafe and that his supervisors
were trying to save money by avoiding scaffold modifications.
Ferdman Decl., Ex. Z, Confidential Mem. at 4-5.

Donnelly instructed

Plaintiff to inform Dee Smith, the construction manager, of his
safety concerns.

Id. at 5.

On October 10, 2011, Donnelly sent an

email to Dee Smith and copied Leonard Wallace, the Human Resources
manager at Plaintiff’s job site (Chamber Works), informing them of
her instruction.

That email stated, in pertinent part,

Dee,
Ramon Victoria has been asking to meet with me regarding
issues he is having, however I do not know what the issues
are.
I asked him if he has gone through the chain of command
(Alberto – then Marino). He said yes and that he wants to
speak with me. I told Ramon that he must follow the chain
of command and that his next step is to speak with you[.]
Ramon said to me that he feels like he is being
discriminated against and that Alberto and Martino are
2

The Court recognizes that the record contains inconsistent dates.
For example, the investigative report of Lynn Ray, Fluor’s Health
Safety and Environment Manager, states that Donnelly first spoke
to Plaintiff on the phone on October 13, 2011, but Donnelly’s
email to Dee Smith is dated two days prior. In their statement of
material facts, the parties agree Plaintiff and Donnelly first
spoke on the phone on October 10, 2011. SMF ¶ 131. The exact
date is not material to the Court’s decision.
3

trying to make him lose his job. He also asked about
coming over to Edge Moor, of which I did not give an
answer other than I told Ramon that he absolutely needed
to follow the chain of command and speak with you.
Id. at 5.
On November 11, 2011, Plaintiff used Fluor’s Compliance and
Ethics Hotline to report safety violations.

SMF ¶ 39.

During the

call, Plaintiff complained that since August 2011, DeJesus and
Santocoloma forced employees to work in unsafe conditions by failing
to provide proper modifications to complete job tasks and
instructing them to stand on unsafe handrails and pipes instead of
providing ladders and other tools.

SMF ¶ 40.

In response to

Plaintiff’s hotline complaint, Lynn Ray, Fluor’s Health Safety and
Environmental (“HSE”) manager interviewed Plaintiff. SMF ¶¶ 41, 42.
Ray asked Plaintiff about his allegations of harassment and
discrimination he made to Donnelly.

Plaintiff responded that he was

no longer getting overtime and was reassigned from jobs when he
asked for the scaffolding to be modified.

Id.

Ray further reported

that Plaintiff told him that the people who replaced him on a job
were taller and had a longer reach which facilitated getting the job
done without scaffold modifications.

The interview notes do not

indicate that Plaintiff tied his feelings of harassment and
discrimination previously reported to Donnelly as race or national
origin discrimination.

Ray ultimately concluded Plaintiff’s hotline
4

allegations were not substantiated.

SMF ¶¶ 41, 42.

On December 16, 2011, Plaintiff was laid off as part of a RIF
along with 14 other individuals, two of which were also insulators
(Angel Martinez and Luis Rijo).
of Laid Off Employees.

SMF ¶ 7; Ferdman Decl. Ex. X, List

On January 8, 2012, less than a month after

Plaintiff was terminated, he submitted a letter to the Occupational
Safety and Health Administration (OSHA) citing various safety
violations by Fluor including forcing employees to stand on pipes
and work on unsafe ladders.

SMF ¶ 52.

All of Plaintiff’s OSHA

allegations concerned safety and did not allege any type of
discrimination or retaliation based on race or national origin.

SMF

¶ 54.
On January 18, 2012, OSHA responded that the case was closed on
the grounds that any hazardous condition had been corrected.
57.

SMF ¶

OSHA also informed Plaintiff that of the 14 people laid off

between December 14-16, 2011, eight were Caucasian.

SMF ¶¶ 59, 60.

On August 21, 2012, OSHA notified Plaintiff that it had completed
its investigation into Plaintiff’s allegations that Fluor had laid
off Plaintiff in retaliation for reporting safety and health issues
to management and found that the preponderance of the evidence
indicated that the protected activity was not a contributing factor
in Plaintiff’s termination.

SMF ¶ 62.

5

The letter further notified

Plaintiff that he could file an appeal but Plaintiff never did.

SMF

¶¶ 63, 64.
On December 16, 2012, Plaintiff filed a complaint alleging
unlawful employment practices under 42 U.S.C. 1981, employment
discrimination under NJLAD, N.J.S.A. 10:5-12, and negligence.
II.

JURISDICTION
When Defendant removed Plaintiff’s complaint to this Court,

the complaint contained both federal and state claims.

As a

result, this Court had jurisdiction over Plaintiff’s federal
claims under 28 U.S.C. § 1331, and supplemental jurisdiction over
Plaintiff’s state law claims under 28 U.S.C. § 1367(a), which
provides in relevant part, “[I]n any civil action of which the
district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution.”
III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the Court is satisfied
that “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that

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the moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ.
P. 56(c).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

A fact is “material” if, under the governing substantive

law, a dispute about the fact might affect the outcome of the
suit.

Id.

In considering a motion for summary judgment, a

district court may not make credibility determinations or engage
in any weighing of the evidence; instead, the non-moving party's
evidence “is to be believed and all justifiable inferences are to
be drawn in his favor.”

Marino v. Industrial Crating Co., 358

F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp. v.

Once the moving party has met

this burden, the nonmoving party must identify, by affidavits or
otherwise, specific facts showing that there is a genuine issue
for trial.

Id.

Thus, to withstand a properly supported motion

for summary judgment, the nonmoving party must identify specific
facts and affirmative evidence that contradict those offered by

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the moving party.

Anderson, 477 U.S. at 256-57.

A party opposing

summary judgment must do more than just rest upon mere
allegations, general denials, or vague statements.

Saldana v.

Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
IV.

ANALYSIS
Section 1981 provides, in pertinent part, that “[a]ll persons

within the jurisdiction of the United States shall have the same
right in every State ... to make and enforce contracts ... as is
enjoyed by white citizens....”

42 U.S.C. § 1981.

The statute

covers private acts of racial discrimination. Runyon v. McCrary,
427 U.S. 160, 170, 96 S.Ct. 2586, 2594, 49 L.Ed.2d 415, 424
(1976).

“A successful section 1981 claim requires proof of

intentional discrimination.”

Chauhan v. M. Alfieri Co., Inc., 897

F.2d 123, 126 (3d Cir. 1990) (citations omitted).

The standards

applied to claims arising under § 1981 and the NJLAD are the same.
Marley v. CORT Furniture Rental Corp., No. 06-4926, 2008 WL
4066345, at *2 n.4 (D.N.J. Aug. 26, 2008) aff'd, 348 F. App'x 798
(3d Cir. 2009) (citing Hutchins v. United Parcel Service, Inc.,
197 Fed. Appx. 152, 156 (3d Cir. 2006)).
A plaintiff may prove discriminatory intent with direct
evidence or indirect evidence.

Anderson v. Wachovia Mortg. Corp.,

621 F.3d 261, 267–68 (3d Cir. 2010) (applying direct evidence test

8

in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104
L.Ed.2d 268 (1989), and the burden-shifting framework in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d
668 (1973) to lending discrimination claims brought under § 1981).
Plaintiff does not offer direct evidence of discriminatory
intent.

See Anderson, 621 F.3d at 269 (finding requirements for

direct evidence to be a “high hurdle” and that direct evidence
must satisfy two requirements: (1) the evidence must be strong
enough to permit the factfinder to infer that a discriminatory
attitude was more likely than not a motivating factor in the
defendant's decision; and (2) the evidence must be connected to
the decision being challenged by the plaintiff and must be made at
a time proximate to the challenged decision and by a person
closely linked to that decision).

Rather, plaintiff appears to

rely on indirect evidence using the McDonnell Douglas burdenshifting framework.
Courts interpreting § 1981 claims apply the same McDonnell
Douglas burden-shifting analysis applied in Title VII claims.
Anderson, 621 F.3d at 273 (applying burden-shifting framework in a
§ 1981 lending discrimination claim); Santiago v. City of
Vineland, 107 F. Supp. 2d 512, 531 (D.N.J. 2000) (applying burdenshifting framework in a § 1981 employment discrimination claim).

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The burden-shifting framework is a three step process.

First, the

plaintiff must establish a prima facie case of discrimination.
Anderson, 621 F.3d at 270–71.

If a plaintiff makes out a prima

facie case, then the “burden of production shifts to the defendant
to offer evidence of a legitimate, nondiscriminatory reason for
the action.”

Id. at 271. (citing Connors v. Chrysler Fin. Corp.,

160 F.3d 971, 974 n.2 (3d Cir. 1998)).

If the defendant meets its

burden, then the burden of production shifts back to the
plaintiff, who must show by a preponderance of the evidence that
the defendant's explanation is pretextual.

Id.

“[T]hroughout

this burden-shifting paradigm the ultimate burden of proving
intentional discrimination always rests with the plaintiff.”

Id.

(citing Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)).
A. Plaintiff’s Claims of Discrimination
As an initial matter, it is unclear whether Plaintiff has
abandoned his claims of racial discrimination under § 1981.
Plaintiff’s complaint references “racial discrimination” but his
opposition brief focuses solely on his allegations of
discrimination based on his national origin.

Despite Plaintiff’s

focus on national origin discrimination, Plaintiff concedes in his
opposition brief that “a claim based solely on national origin
would be an insufficient basis for a § 1981 claim[.]”

10

Pl.’s Opp.

Br. at 16 (citing Funayama v. Nichia Am. Corp., No. 08-5599, 2009
WL 1437656 (E.D. Pa. May 21, 2009)).
The Court agrees with Plaintiff that his national origin
claim pursuant to § 1981 fails as a matter of law.

In Saint

Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987), the
Supreme Court found that § 1981 protects against discrimination
based on race, ancestry, and ethnic characteristics.

While the

Third Circuit has not decided whether discrimination based on
national origin may be subsumed within the category of “ancestry”
the majority of courts in the Third Circuit have found that
national origin is not protected by § 1981.

Wesley v. Palace

Rehab. & Care Ctr., L.L.C., 3 F. Supp. 3d 221, 233 (D.N.J. 2014)
(citing Funayama, 2009 WL 1437656, at *4 (collecting cases)).
Accordingly, Fluor’s motion for summary judgment on Plaintiff’s
national origin discrimination claim under § 1981 is granted.
The Court next considers Plaintiff’s racial discrimination
claim under § 1981 and claim of discrimination as a result of “Mr.
Victoria’s complaints and his national origin” under NJLAD.
Compl. ¶ 40.

To establish a prima facie case of unlawful

employment discrimination under § 1981 or NJLAD a plaintiff must
show that: (1) s/he belongs to a protected class; (2) s/he was
qualified for the position s/he sought to retain or attain; (3)

11

s/he was subjected to an adverse employment action; and (4) the
action occurred under circumstances giving rise to an inference
that the adverse action was taken on account of his or her
membership in the protected class.

Jackson v. Temple Univ. Hosp.,

Inc., 501 F. App'x 120, 122, 123 n.2 (3d Cir. 2012) (§ 1981);
McConnell v. State Farm Mut. Ins. Co., 61 F. Supp. 2d 356, 362
(D.N.J. 1999) (NJLAD).
To satisfy the fourth element of the prima facie case where
the basis of a plaintiff's claim is an employment termination in
the context of a RIF, the plaintiff must present evidence that
similarly situated persons outside of his or her protected class
were retained.

Jackson, 501 F. App’x at 123 (citing In Re:

Carnegie Ctr. Assocs., 129 F.3d 290, 294–95 (3d Cir. 1997)); see
also Bratek v. TD Bank, N.A., No. 11-3049, 2012 WL 603299, at *5
(D.N.J. Feb. 22, 2012) (plaintiffs failed to establish a RIF prima
facie case of discrimination under the NJLAD where the complaint
was silent on the issue of whether the retained workers were
“similarly situated” to plaintiffs); Spagnoli v. Brown & Brown
Metro, Inc., No. 06-414, 2007 WL 2362602, at *6 (D.N.J. Aug. 15,
2007) (granting summary judgment where plaintiff did not show she
was terminated while her employer retained others outside her
protected class).

12

Fluor contends that Plaintiff has failed to establish the
fourth prong of a RIF prima facie case of discrimination.
Court agrees.

The

Plaintiff has failed to provide evidence that

similarly situated persons outside his protected class were
retained following the RIF.

In Jackson, the Court found that

plaintiff did not establish a prima facie case of unlawful
employment discrimination where she produced a list of retained
employees but did not establish that any of those employees were
similarly situated.

Jackson, 501 F. App’x at 123.

Plaintiff,

likewise, has made no such showing that persons outside his
protected class were retained or that those retained were
similarly situated.

In fact, the undisputed record demonstrates

the opposite is true.

Plaintiff testified that there were a

number of Dominican insulators who continued working at his site
after he was terminated.

SMF ¶ 33.

Specifically, Plaintiff

testified that of the 26 insulators at least four were Dominican.
None of the four coworkers identified by Plaintiff as Dominican
were terminated in the RIF with Plaintiff.
see also Pl.’s Dep. 261-11:23.3

Ferdman Decl., Ex. X;

Additionally, Fluor has produced

3 In his opposition brief, Plaintiff claims (without affidavit)
that the two other insulators terminated were also Dominican. In
his deposition, Plaintiff only testified that Reyes was Dominican.
SMF ¶ 76. However, what is relevant is who was retained not who
was terminated.
13

an affidavit from one of Plaintiff’s supervisors which avers,
“Many [of the insulators], like Mr. Victoria, are from the
Dominican Republic, and are currently working with me with the new
contractor on the Dupont Chambers Works site and have been working
with me since we were employees for Fluor.”
15.

Santocoloma Aff. ¶

Accordingly, because Plaintiff has failed to present evidence

that similarly situated persons outside of his protected class
were retained, Plaintiff’s discrimination claims under § 1981 and
the NJLAD fail as a matter of law.

As such, Fluor’s motion for

summary judgment is granted.
B. Plaintiff’s Retaliation Claim
To establish a claim for retaliation a plaintiff must prove
that: (1) he engaged in protected activity, (2) his employer took
an adverse employment action against him, and (3) there was a
causal connection between his participation in the protected
activity and the adverse employment action.

McHugh v. New Jersey,

604 F.3d 788, 798 (3d Cir. 2010) (§ 1981); Abramson v. William
Paterson Coll. of New Jersey, 260 F.3d 265, 286 (3d Cir. 2001)
(NJLAD).
Fluor argues that Plaintiff did not engage in protected
activity under § 1981 or the NJLAD because all of Plaintiff’s
complaints centered on safety and not discrimination.

14

The NJLAD

makes it illegal for an employer to terminate an employee on the
basis of race, national origin, sex and other protected
characteristics.

N.J.S.A. 10:5-12.

Plaintiff makes no argument

in opposition to Fluor’s contention that his retaliation claims
fail.

However, in Plaintiff’s complaint he alleges that Fluor

terminated him in retaliation for his complaints about “racial
discrimination and harassment.”

Compl. ¶ 34.

It is undisputed that the majority of Plaintiff’s complaints,
such as his complaint to OSHA and hotline complaint concerned
safety.

Safety complaints are insufficient to give rise to § 1981

and NJLAD claims.

Stouch v. Twp. Of Irvington, 354 F. App'x 660,

667 (3d Cir. 2009) (plaintiff’s complaint to OSHA was not
protected activity under the ADA or NJLAD where the complaint
centered on the conditions of his workplace and not disability
discrimination); Davis v. Supervalu, Inc., No. 13-414, 2013 WL
1704295, at *4 (D.N.J. Apr. 19, 2013) (dismissing claim of
retaliation under the NJLAD because the alleged protected activity
concerned worker’s compensation and not a discriminatory
employment practice).
Section 1981 prohibits discrimination based on race,
alienage, ancestry, or ethnic characteristics.

See Saint Francis

Coll., 481 U.S. at 613. “In order to state a claim for retaliation

15

under § 1981, the ‘protected activity’ must relate to
discrimination prohibited by § 1981, not just under any statute.”
Doe v. Sizewise Rentals, LLC, No. 09-3409, 2012 WL 1191944, at *5
(D.N.J. Apr. 10, 2012) aff'd, 530 F. App'x 171 (3d Cir. 2013).
Aside from complaints regarding safety, the only other
evidence of a racial or national origin complaint is reflected in
Donnelly’s email notes which state that Plaintiff told her he
“feels like he’s being discriminated against.”
It is unclear to the Court what Plaintiff meant when he told
Donnelly that he felt discriminated against.
reference his race or national origin.

Certainly he did not

When asked about his

allegations of “harassment and discrimination” during a later
interview, Plaintiff stated that he was not getting overtime and
was reassigned jobs when he asked for the scaffolds to be
modified. Ferdman Decl., Ex. W, Fluor Hotline Phone Complaint at
4.

Nonetheless, the Court must construe all factual questions in

favor of Plaintiff.

Thus, the Court will assume Plaintiff engaged

in protected activity when he complained to Donnelly that he felt
discriminated against.
Because the parties do not dispute that Plaintiff was
terminated, the Court next considers whether there was a causal
connection between his participation in the protected activity and

16

the adverse employment action.

The Third Circuit focuses on two

main factors to establish the causal link necessary for
retaliation: timing and evidence of ongoing antagonism.

Abramson

v. William Paterson Coll. of New Jersey, 260 F.3d 265, 288 (3d
Cir. 2001) (citing Farrell v. Planters Lifesavers Co., 206 F.3d
271, 279 (3d Cir. 2000)).

“[T]he timing of the alleged

retaliatory action must be unusually suggestive of retaliatory
motive before a causal link will be inferred.

Shellenberger v.

Summit Bancorp, Inc., 318 F.3d 183, 189 n.9 (3d Cir. 2003)
Plaintiff complained to Donnelly on or about October 10,
2011, and was terminated on December 16, 2011.

This time frame by

itself is insufficient to establish a discriminatory inference.
See Carlson v. Twp. of Lower Alloways Creek, 452 F. App'x 95, 101
(3d Cir. 2011) (one month period between grievance and termination
alone was insufficient to establish a discriminatory inference);
McCloud v. United Parcel Serv., Inc., 328 F. App'x 777, 781 (3d
Cir. 2009) (one month after filing discrimination complaint and
termination was not “particularly suggestive”).

Further, there is

no evidence of ongoing antagonism regarding race or national
origin discrimination sufficient to give rise to an inference that
he was terminated for complaining about discrimination to
Donnelly.

17

Alternatively, even if Plaintiff established causation, he
cannot establish Fluor’s legitimate, nondiscriminatory reason for
the RIF was pretextual.

Plaintiff concedes (see SMF ¶ 70) that

there are three bases for his allegation that Flour engaged in a
course of discriminatory conduct by terminating employees of
Dominican descent: 1) Dominicans were given write-ups for things
they did not agree on; 2) DeJesus gave Plaintiff’s uncle, Fermin
Matos, the nickname Ferminol, which is the name of a medication;
and 3) Santocoloma stated that he did not know Dominicans could
use a calculator when he saw Plaintiff using one.

SMF ¶ 70.

However, Plaintiff admitted in his deposition that he does not
know why any other individuals were written up because he “wasn’t
there.”

SMF ¶ 71 (citing Pl.’s Dep. 269:8-270:20).

Plaintiff

further testified he did not know what the name Ferminol meant or
why the nickname was discriminatory.
266:17-267:20).

SMF ¶ 72 (citing Pl.’s Dep.

Finally, the single stray remark made by

Santocoloma, on an unknown date, is of little probative value.
Muhammad v. Day & Zimmermann NPS, No. 09-01670, 2011 WL 3036627,
at *6 (D.N.J. July 25, 2011) (“[S]tray remarks [] are insufficient
for a fact-finder to reasonably disbelieve [the employer’s]
articulated reason for terminating Plaintiff.”) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91

18

L.Ed.2d 202 (1986) (“The mere existence of a scintilla of evidence
in support of the plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably find for the
plaintiff”).

As Plaintiff has not demonstrated any “weakness,

implausibilities, inconsistencies, incoherencies, or
contradictions” in Fluor’s stated reason so that this Court could
conclude that Fluor’s explanation is “unworthy of credence,”
summary judgment will be granted for Fluor on Plaintiff’s
retaliation claim.

Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.

1994).
C. Plaintiff’s Negligence Claim
In Plaintiff’s negligence claim he alleges that Fluor failed
to supervise its employees to prevent them from committing
“discriminatory and unlawful practices.”

Compl. ¶ 48.

Plaintiff’s negligence claim, which relies on the same facts as
his statutory claims, is preempted.

Bull v. Target Corp., No. 14-

6838, 2015 WL 1266792, at *3 (D.N.J. Mar. 17, 2015) (“The New
Jersey Appellate Division has held that the New Jersey State
Legislature intended for the NJLAD to “encompass all those claims
and damages previously available at common law[.]”) (citing Dale
v. Boy Scouts of Am., 308 N.J. Super. 516, 543 (N.J. App. Div.
1998), aff'd, 160 N.J. 562, 734 (1999), rev'd on other grounds,

19

530 U.S. 640 (2000)).

Further, courts in this district have found

that the NJLAD provides “the exclusive remedy for common law
claims based on the same facts.”

Id. (citing cases).

Accordingly, summary judgment is granted for Fluor on Plaintiff’s
negligence claim.
V.

CONCLUSION
For the foregoing reasons, Fluor entitled to summary judgment

in their favor on all of Plaintiff’s claims against it.4

An

appropriate Order will be entered.

Date: October 2, 2015

s/ Noel L. Hillman____
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

4

Fluor, in its reply brief, cites a sundry of Local Rule
violations within Plaintiff’s papers. Fluor asks the Court to
deem particular facts admitted and strike certain submissions.
However, the Court need not address these issues. Without
granting Fluor the remedies it seeks the Court finds there are no
genuine disputes of material fact and Fluor is entitled to summary
judgment on all of its claims.
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