ROBINSON v. NORTH AMERICAN COMPOSITES

Filing 25

OPINION. Signed by Judge Renee Marie Bumb on 6/6/2017. (tf, )

[Docket No. 16]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

PATRICK ROBINSON,
Plaintiff,

Civil No. 15-8702 (RMB/AMD)
OPINION

v.
NORTH AMERICAN COMPOSITES,
Defendant.

APPEARANCES:
David M. Koller, Esq.
Koller Law, LLC
2043 Locust Street, Suite 1B
Philadelphia, PA 19103
Attorney for Plaintiff Patrick Robinson
Christine Grady Derewicz, Esq.
Sarah Bryan Fask, Esq.
Littler Mendelson, P.C.
Three Parkway
1601 Cherry Street, Suite 1400
Philadelphia, PA 19102
Attorneys for Defendant North American Composites
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the Motion for
Summary Judgment [Docket No. 16] by Defendant North American
Composites (“NAC” or the “Defendant”), seeking the dismissal of
the above-captioned action by Plaintiff Patrick Robinson (the
“Plaintiff”).

Having considered the parties’ submissions, and

1

for the reasons set forth below, Defendant’s Motion for Summary
Judgment is granted.
I.

FACTUAL AND PROCEDURAL BACKGROUND1
This litigation stems from a series of union grievances

filed by Plaintiff over the course of his employment with NAC, a
national distributor of composite raw materials and equipment.
Def. SOMF ¶ 1.

Plaintiff has been employed by NAC or its

predecessors since approximately May 2004 and continues to work
for NAC as a warehouse worker to this day.

Def. SOMF ¶¶ 8-9.

By all accounts, Plaintiff is a hardworking and qualified
employee.

He has never been reprimanded or disciplined during

his employment with NAC.

Id. ¶ 23.

He serves as the union

steward for the warehouse workers’ union and represents the
union in collective bargaining sessions.

Id. ¶¶ 25-26.

Plaintiff earns a higher hourly wage than most other warehouse
workers.

Id. ¶¶ 19, 27.

Plaintiff’s performance reviews have

described him as a “hardworking, dependable employee” who
“exceeds expectations.”

Id. ¶ 34.

Plaintiff, however, filed five union grievances with NAC
between April 2013 and July 2014.

1

In these grievances,

To the extent that the parties agree on particular facts,
the Court relies upon Defendant’s Statement of Undisputed
Material Facts (“Def. SOMF”) [Docket No. 16-2] and Plaintiff’s
Response to Defendant’s Statement of Undisputed Material Facts
(“Pl. Resp. SOMF”) [Docket No. 22]. The Court will rely upon the
record for disputed facts.
2

Plaintiff claimed that his former supervisor, Steve Privitera,
made racially-motivated comments on several occasions and
discriminated against Plaintiff on the basis of race in
assigning work amongst warehouse workers and in applying NAC’s
vacation policy.

Def. SOMF ¶¶ 56-65, 87, 90, 94, 107, 116.

Plaintiff is African-American.

Id. ¶ 7.

NAC has denied each

grievance and the union has subsequently declined to pursue the
grievances further.

Id. ¶¶ 82, 92-93, 105-06, 114-15, 121-22.

Plaintiff did not, at any time, report his allegations to NAC
utilizing NAC’s non-discrimination and anti-harassment policies.
Id. ¶ 66.
NAC’s non-discrimination policy specifically forbids
discrimination against an individual because of his or her race.
Id. ¶ 5.

Similarly, NAC’s anti-harassment policy prohibits

racially-motivated harassment.

Id. ¶ 6.

The policy also

informs employees of their “right to report [any] violation to
the Company.

Violations should always be reported to the HUMAN

RESOURCES DEPARTMENT.”

Id. (capitalization in original).

Plaintiff received a copy of NAC’s employee handbook, which
includes these policies, in 2007, and knew that he had the
ability to report any complaints of harassment or discrimination
to NAC’s Human Resources Department.

Id. ¶¶ 14-15.

In 2012, Plaintiff asked to meet with the operations
supervisor, Hugo Nieves, to whom Privitera reported.

3

Plaintiff

wished to raise “a lot of issues that [he] had with
[Privitera].”

Id. ¶ 41.

All of the warehouse workers and the

drivers’ supervisor also participated in Plaintiff’s meeting
with Nieves.

Id. ¶ 42.

During the meeting, Plaintiff told

Nieves that Privitera did not treat Plaintiff and Mike
Blackwell, another African-American warehouse worker, fairly and
made racial comments and jokes.
Ex. C [Docket No. 16-4].

Pl. Dep. 99:10-100:14, Def.

Plaintiff also claimed that Privitera

treated Robinson and Blackwell differently than other workers
because they are African-American.

Pl. Resp. SOMF ¶ 44.

Additionally, Plaintiff reported that Privitera allowed other
warehouse workers to work less than Plaintiff and Blackwell and
that Privitera watched him and Blackwell more than other
employees.

Def. SOMF ¶¶ 46-47.

Plaintiff did not claim,

however, that the alleged unfair division of labor was motivated
by race.

Id. ¶ 48.

Other employees at the meeting also had

complaints about Privitera, though none were related to race or
racial animus.

Id. ¶¶ 49-50.

Plaintiff does not recall raising

concerns about racism to Nieves in subsequent meetings.

Pl.

Resp. SOMF ¶¶ 53-55.
On April 15, 2013, Plaintiff filed a grievance through his
union, claiming that Privitera assigned Plaintiff and Blackwell
more work than warehouse workers who were not African-American,
and that Privitera only raised his voice and was disrespectful

4

to African-American employees.

Def. SOMF ¶¶ 56-57.

The

grievance also alleged five racially-motivated comments made by
Privitera at unspecified times.

At some point prior to the

grievance, while another employee, Blackwell, was eating a
banana, Privitera asked if that was part of “Barack’s stimulus
program.”

Two weeks later, while eating a banana, Privitera

smiled and said he was impersonating Obama.

On another

occasion, when NAC’s Brother fax machine malfunctioned,
Privitera commented that “you can’t rely on a brother.”

On

another date, when Blackwell’s brother visited, Privitera asked,
“What Pookie want?,” an apparent reference to an
African-American character in the movie New Jack City.
Plaintiff also claimed that Privitera called tall
African-American men in the warehouse “Big John Coffey,” in
reference to an African-American character in the movie
The Green Mile.

Id. ¶¶ 58-65.

Plaintiff did not report any of

these comments to Human Resources or any NAC supervisor,
including Nieves, before filing the grievance because he thought
nothing would be done if he complained.

Id. ¶ 66-67.

On April 24, 2013, Karen Johansen, NAC’s Human Resources
Generalist, began an investigation into Plaintiff’s grievance.
Pl. Resp. SOMF ¶¶ 73-75.

She interviewed several NAC employees

as part of the investigation and, ultimately, concluded that
Privitera did not violate NAC’s anti-harassment or

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anti-discrimination policies or the law.

Def. SOMF ¶¶ 75-76.

She also determined that Plaintiff’s claims that Privitera
unfairly distributed work amongst the warehouse workers were
meritless.

Johansen Decl. ¶ 6, Def. Ex. M [Docket No. 16-6].

Johansen did, however, determine that Privitera’s comments were
“inappropriate and unprofessional” and disciplined Privitera.
Def. SOMF ¶¶ 78-79.

She prepared a comprehensive summary of her

investigation and findings and provided it to Plaintiff.
¶ 80.

The grievance was denied.

Id. ¶ 82.

Id.

Privitera did not

make any racially-insensitive comments after Plaintiff filed his
April 15, 2013 grievance.

Id. ¶ 81.

The vacation policy set forth in the Collective Bargaining
Agreement between NAC and the warehouse workers’ union provides
that “the Company reserves the right to determine the number of
Employees who are on vacation at any one time.”

Id. ¶ 20.

Generally, NAC permits only one warehouse worker to take
vacation at a time.

Id. ¶ 21.

At times, however, having more

than one warehouse worker on vacation at a time does not put NAC
in jeopardy of missing business orders, as NAC’s business is
cyclical.

Id. ¶ 22.

Shortly before Thanksgiving 2013, Plaintiff attempted to
change his previously-scheduled vacation days so that he would
be out at the same time as Blackwell around the Thanksgiving
holiday.

Id. ¶ 83.

Privitera notified Nieves of Plaintiff’s

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vacation request, which Nieves considered and then denied
because of NAC’s business demands.

Id. ¶ 85.

Blackwell,

however, was permitted to take this vacation time, as he had his
vacation scheduled first.

Id. ¶ 84.

Thereafter, Blackwell and

another warehouse worker, Jaram Maldonado, were permitted to
take the same vacation days off after Christmas because the
business demands permitted.

Id. ¶ 86.

On December 27, 2013, Plaintiff filed another union
grievance complaining that he and Blackwell were not permitted
to take off the same vacation days around Thanksgiving, but that
Maldonado and Blackwell were permitted to do so around
Christmas.

Id. ¶ 87.

Plaintiff alleged that NAC’s decision to

allow Maldonado and Blackwell, a Caucasian employee and an
African-American employee, off together, but not two
African-American employees, was racially motivated.

Id. ¶ 90.

Plaintiff testified at his deposition that he did not know who
made the decision to deny his Thanksgiving 2013 vacation
request, but that if Nieves had made the decision, it would not
necessarily have been racially-motivated.

Id. ¶ 91.

NAC denied

the grievance on the basis of its vacation policy and the union
declined to pursue it further.

Id. ¶¶ 92-93.

On March 20, 2014, Plaintiff filed a third union grievance,
alleging that Privitera did not assign one particular type of
work assignment evenly among the warehouse workers and that,

7

because Maldonado refused to perform certain tasks, Privitera
divided the work among Maldonado, Robinson, and Blackwell.
¶ 107.

Nieves held a meeting to address the grievance.

Id.

At the

meeting, he discussed work assignments and the fact that the
supervisor has the right to assign work to any employee, as
required by business needs.

Id. ¶ 112.

He also asked Privitera

to personally assign work tasks to all employees if they tried
to avoid any tasks.

Id. ¶ 113.

Thereafter, NAC denied

Plaintiff’s grievance, citing the collective bargaining
agreement, and the union declined to pursue the grievance any
further.

Id. ¶¶ 114-15.

On May 27, 2014, Plaintiff filed another union grievance
about vacation approvals.

Id. ¶ 94.

In December 2013,

Plaintiff submitted a request for vacation days in May 2014,
which NAC approved.

Id. ¶¶ 95-96.

Subsequently, in March 2014,

another employee, Jeff Paxton, requested the same days off.
¶ 97.

Id.

Privitera approved Paxton’s vacation request, apparently

not realizing that it overlapped with Plaintiff’s
previously-approved vacation.
[Docket No. 16-4].

Nieves Decl. ¶¶ 17-18, Def. Ex. A

When Nieves realized that two employees had

been approved to take off the same days, he spoke with Paxton,
who informed Nieves that he had scheduled a prepaid vacation.
Def. SOMF ¶¶ 99-100.

Nieves determined it would be unfair to

require Paxton to cancel his vacation because of NAC’s oversight

8

and permitted him to take his vacation days.

Id. ¶ 101.

Plaintiff’s grievance does not mention race; instead, Plaintiff
argued that Paxton should have been forced to cancel his
vacation.

Id. ¶¶ 103-04.

NAC responded to the grievance,

admitting that it had made a scheduling mistake and advising
Plaintiff that the issue had been addressed with the supervisor.
The union declined to pursue the grievance any further.

Id.

¶¶ 105-06.
In July 2014, Plaintiff filed his fifth grievance, again
alleging that Maldonado was permitted to do less work than
Robinson and Blackwell.

Id. ¶ 116.

The grievance does not

mention race, although Plaintiff now contends in this litigation
that the allegedly unfair distribution of work assignments was
racially discriminatory.

Id. ¶¶ 117-18.

NAC denied this

grievance, again citing its rights under the collective
bargaining agreement, and the union declined to pursue the
grievance any further.

Id. ¶¶ 121-22.

On July 18, 2014,

Plaintiff also filed a complaint with the New Jersey Division on
Civil Rights (“NJDCR”) and the Equal Employment Opportunity
Commission (“EEOC”) regarding his various grievances against
Privitera.

Id. ¶ 129.

On March 14, 2016, NAC terminated Privitera’s employment.
Id. ¶ 127.

Plaintiff admits that he has not experienced any

discrimination at NAC since Privitera’s termination.

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Id. ¶ 128.

Based upon these facts, Plaintiff claims that he has been
discriminated against based upon his race and that he has been
forced to endure a hostile work environment.

On November 2,

2015, Plaintiff commenced the instant litigation in the Superior
Court of New Jersey, Law Division, Atlantic County, setting
forth the following counts: violation of the New Jersey Law
Against Discrimination (“NJLAD”), N.J.S.A. § 10:5-12 (Count I);
race discrimination - disparate treatment in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII),
42 U.S.C. § 2000e, et seq. (Count II); and race discrimination hostile work environment in violation of Title VII (Count III).
Complaint, Notice of Removal Ex. A [Docket No. 1].

Defendant

subsequently removed the action to federal court on December 16,
2015 [Docket No. 1].

Defendant now moves for summary judgment

and dismissal of Plaintiff’s Complaint in its entirety.
II.

SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted 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.”
Civ. P. 56(a).

Fed. R.

A fact is “material” if it will “affect the

outcome of the suit under the governing law[.]”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute is

“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”

10

Id.

In determining the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”

Meyer v. Riegel Prods.

Corps., 720 F.2d 303, 307 n. 2 (3d Cir. 1983).

However, a mere

“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.

Anderson, 477 U.S. at 252.

Furthermore, a court need not adopt the version of facts
asserted by the nonmoving party if those facts are “utterly
discredited by the record [so] that no reasonable jury” could
believe them.

Scott v. Harris, 550 U.S. 372, 380 (2007).

In

the face of such evidence, summary judgment is still appropriate
“where the record . . . could not lead a rational trier of fact
to find for the nonmoving party[.]”

Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”

Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ.
P. 56(c)).

Then, “when a properly supported motion for summary

judgment [has been] made, the adverse party ‘must set forth

11

specific facts showing that there is a genuine issue for
trial.’”

Anderson, 477 U.S. at 250 (citing Fed. R. Civ.

P. 56(e)).

The nonmovant’s burden is rigorous: he “must point

to concrete evidence in the record”; mere allegations,
conclusions, conjecture, and speculation will not defeat summary
judgment.

Orsatti v. New Jersey State Police, 71 F.3d 480, 484

(3d Cir. 1995); accord Jackson v. Danberg, 594 F.3d 210, 227
(3d Cir. 2010) (citing Acumed LLC v. Advanced Surgical Servs.,
Inc., 561 F.3d 199, 228 (3d Cir. 2009) (“[S]peculation and
conjecture may not defeat summary judgment.”)).
III. ANALYSIS
A. Race Discrimination
Title VII and NJLAD prohibit employment discrimination on
the basis of race, as well as certain other protected
characteristics.

42 U.S.C. § 2000e-2; N.J.S.A. § 10:5-12(a).

“All retaliation and discrimination claims brought under Title
VII and the NJLAD, including those based on sex, race, and
disability, which rely on circumstantial evidence, are
controlled by the three-step burden-shifting framework set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).”
Tourtellotte v. Eli Lilly & Co., 636 F. App’x 831, 841 (3d Cir.
2016); see also Battaglia v. United Parcel Serv., Inc., 214 N.J.
518, 546 (2013) (“All LAD claims are evaluated in accordance

12

with the United States Supreme Court’s burden-shifting
mechanism.”).
Under this burden-shifting framework, a plaintiff must
first establish a prima facie case of discrimination.

Terry v.

Borough, 660 F. App’x 160, 163 (3d Cir. 2016) (quoting Jones v.
Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999)).

Then

“[i]f the plaintiff succeeds in establishing a prima facie case,
the burden shifts to the defendant to articulate some
legitimate, nondiscriminatory reason for the [employment
action].”

Id. (quoting Jones, 198 F.3d at 410).

“Finally,

should the defendant carry this burden, the plaintiff then must
have an opportunity to prove by a preponderance of the evidence
that the legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for discrimination.”

Id.

(quoting Jones, 198 F.3d at 410).
i. Prima Facie Case
To establish a prima facie case of disparate treatment on
the basis of race under Title VII and NJLAD, a plaintiff must
show the following: “(1) he belongs to a protected class; (2) he
is qualified for the position; (3) he suffered some form of
adverse employment action; and (4) the adverse employment action
occurred under some circumstances that give rise to an inference
of unlawful discrimination.”

Stewart v. Union Cty. Bd. of

Educ., 655 F. App’x 151, 155 (3d Cir. 2016) (citing St. Mary’s

13

Honor Center v. Hicks, 509 U.S. 502, 506-07 (1993); Texas Dep’t
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981);
McDonnell Douglas, 411 U.S. at 802).
The parties do not dispute that Plaintiff, as an
African-American employee, is a member of a protected class.
Additionally, the parties do not contest that Plaintiff is
qualified for the position he holds.

Indeed, Plaintiff has

consistently earned positive performance evaluations and
continues to work for NAC.
final two elements.

The parties’ dispute centers on the

Defendant contends that Plaintiff did not

suffer any actionable adverse employment actions and that there
is no evidence in the record that gives rise to an inference of
unlawful discrimination.
Defendant argues that Plaintiff’s discrimination claims
must be dismissed as Plaintiff did not suffer any actionable
adverse employment actions.

Plaintiff has never been

reprimanded or disciplined during his employment with NAC.
SOMF ¶ 23.

Def.

He has received generally positive performance

evaluations.

Id. ¶ 34.

He has not been subject to any

reductions in pay or benefits and, in fact, earns an hourly wage
above that set forth in the relevant collective bargaining
agreement.

Id. ¶ 27.

Moreover, Plaintiff has not been

discharged and continues to work at NAC.

14

Id. ¶ 9.

Plaintiff’s discrimination claims are instead based upon
the denial of his request for vacation around Thanksgiving 2013
and allegedly unfair division of labor.

Defendant contends that

these are insufficient bases for Plaintiff’s discrimination
claims as they do not rise to the level of adverse employment
actions that are actionable under Title VII or NJLAD.
Not every unwelcome employment decision is actionable.
Instead, “[a]n actionable adverse employment action is ‘a
significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits.’”

Betts v. Summit Oaks Hosp., --- F. App’x ----,

2017 WL 1506640, at *2 (3d Cir. Apr. 27, 2017) (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
Stated differently, an adverse employment action must be
“serious and tangible enough to alter an employee’s
compensation, terms, conditions, or privileges of employment.”
Fiorentini v. William Penn Sch. Dist., 665 F. App’x 229, 234
(3d Cir. 2016) (quoting Cardenas v. Massey, 269 F.3d 251, 263
(3d Cir. 2001)).
The Court first considers the denial of Plaintiff’s request
for vacation around Thanksgiving 2013.

The Court agrees with

Defendant that the denial of one vacation request is simply not
serious and tangible enough to materially alter Plaintiff’s

15

compensation, terms, conditions, or privileges of employment.
There is no evidence that this single instance of denied
vacation time impacted Plaintiff’s compensation, benefits, or
terms, conditions, or privileges of employment in any way
whatsoever.

Importantly, this was not part of a pattern of

denying Plaintiff’s vacation requests.

Plaintiff requested and

was granted vacation days on other occasions without issue.
Def. SOMF ¶¶ 95-96.

The denial of a singular request for

vacation does not constitute an actionable adverse employment
action that may support a discrimination claim under Title VII
or NJLAD.

See, e.g., Fraternal Order of Police, Lodge 1 v. City

of Camden, 842 F.3d 231, 241 (3d Cir. 2016) (affirming district
court’s determination that cancellation of vacation is not an
adverse employment action); Mieczkowski v. York City Sch. Dist.,
414 F. App’x 441, 445-47 (3d Cir. 2011) (affirming district
court’s determination that plaintiff had not suffered adverse
employment actions where, among other things, plaintiff was
“arbitrarily asked to cancel vacation days”); Viggiano v. State
of New Jersey, 136 F. App’x 515, 518 (3d Cir. 2005) (finding
that plaintiff suffered no adverse employment actions where
defendant “den[ied] him time off for personal and medical
reasons”); Tucker v. Merck & Co., 131 F. App’x 852, 857 (3d Cir.
2005) (holding that requiring employee to take vacation day

16

rather than personal day did not constitute an adverse
employment action).
The Court next turns to Plaintiff’s contention that he was
assigned more work than certain other warehouse workers who are
not African-American.

As a preliminary matter, the Court agrees

with Defendant that there is no evidence in the record to
support this alleged inequitable division of labor.

Orsatti, 71

F.3d at 484 (plaintiff “must point to concrete evidence in the
record” to raise genuine issue of fact on summary judgment).
Plaintiff presents only his subjective belief that certain
workers did not work as hard as he did, resulting in Privitera
assigning Plaintiff more work.2

Plaintiff’s speculation and

conjecture is insufficient to defeat summary judgment.

Acumed,

561 F.3d at 228; see also Farzan v. Vanguard Grp., Inc.,

2

Plaintiff relies, in part, upon his purportedly
contemporaneous journal entries to support his claims. Pl. Opp.
Ex. A [Docket No. 23-1]. Defendant challenges the admissibility
of these entries on the bases of authenticity and hearsay.
“[T]he rule in this circuit is that hearsay statements can be
considered on a motion for summary judgment if they are capable
of being admissible at trial. . . . The proponent need only
explain the admissible form that is anticipated.” Fraternal
Order of Police, 842 F.3d at 238 (internal citations and
quotations omitted) (emphasis in original). Plaintiff has made
no attempt to do so. While the Court harbors concerns about the
admissibility of Plaintiff’s journal entries, the Court makes no
ruling on their admissibility at this juncture because, even if
admissible, the journal entries do not raise a genuine dispute
of material fact as to whether Plaintiff suffered an actionable
adverse employment action or discrimination. They merely
reiterate Plaintiff’s subjective belief that he worked harder
than other workers.
17

582 F. App’x 105, 108 (3d Cir. 2014) (citing with approval
Fane v. Locke Reynolds, LLP, 480 F.3d 534, 539 (7th Cir. 2007)
(holding that employee’s subjective belief that her workload was
greater than other similarly situated employees was insufficient
to establish disparate treatment)).
Even assuming that Plaintiff’s subjective belief that he
was assigned more work is true, the Court nonetheless finds that
an increase in workload alone does not constitute an actionable
adverse employment action.

There is no allegation, let alone

evidence, that any increased workload resulted in a serious and
tangible alteration of Plaintiff’s conditions or terms of
employment.

Generally, increased duties or workload do not

alone constitute adverse employment actions for purposes of
establishing discrimination claims.

See, e.g., Betts, 2017 WL

1506640, at *2 (finding that lateral transfer to position that
“[did] the work of five people” was not an adverse employment
action as it had no “tangible impact on [plaintiff’s]
employment” and plaintiff’s “title, pay, benefits, and terms of
employment remained the same”); Rosetsky v. Nat’l Bd. of Med.
Examiners of U.S., Inc., 350 F. App’x 698, 701 (3d Cir. 2009)
(finding that “neither [plaintiff’s] dissatisfaction with work
assignments, nor assignment of clerical duties, . . . rise to
the level of the sort of materially adverse significant change
in employment status required for a cause of action under the

18

[Age Discrimination in Employment Act].”); Fitzgerald v. Shore
Mem’l Hosp., 92 F. Supp. 3d 214, 240-41 (D.N.J. 2015) (finding
that “heavier workloads” did not “rise to the level of an
‘adverse employment action’”).
Finally, even if Plaintiff had suffered adverse employment
actions, Plaintiff has nonetheless failed to show that any
alleged adverse employment actions occurred under circumstances
that give rise to an inference of unlawful discrimination, as
required to establish a prima facie case.

Plaintiff admits

that, other than Privitera, no one at NAC, including Nieves,
harbored any racially-motivated animus towards him.
SOMF ¶ 24.

Pl. Resp.

He also admits that “Nieves considered and then

denied [Plaintiff’s vacation request in November 2013], because
of NAC’s business demands.”

Id. ¶ 85 (emphasis added).

Moreover, Plaintiff testified that if Nieves made the decision
to deny his vacation request, that decision would “not
necessarily” have been racially-motivated.

Id. ¶ 91.

Additionally, NAC investigated Plaintiff’s union grievance
related to the vacation denial and found that it was consistent
with NAC’s vacation policy.

Finally, as explained above,

Plaintiff’s subjective belief that he was assigned more work due
to his race is unsupported by any concrete evidence in the
record and, standing alone, is insufficient to establish the
fourth element of the prima facie case.

19

See Holmes v. Newark

Pub. Sch., 2016 WL 3014404, at *9 (D.N.J. May 25, 2016)
(granting summary judgment, in part, because plaintiff
“ground[ed] his claims of discrimination and retaliation in
unsupported, self-serving allegations” only, rather than
“evidence from which a reasonable jury could find that these
purported adverse actions were tied to any protected
characteristic or conduct.”).
Based on the undisputed record before the Court, it is
clear that Plaintiff has suffered no adverse employment action
that was “serious and tangible enough to alter [his]
compensation, terms, conditions, or privileges of employment.”
Fiorentini, 665 F. App’x at 234.

Furthermore, there is no

evidence in the record that could establish that any adverse
employment actions occurred under some circumstances that give
rise to an inference of unlawful discrimination.

For these

reasons, Plaintiff has failed to establish a prima facie case of
race discrimination under Title VII and NJLAD.

Accordingly,

Defendant’s Motion for Summary Judgment is granted as to
Plaintiff’s race discrimination claims based on disparate
treatment (Counts I, II).
ii.

Legitimate Non-Discriminatory Reasons

Even if Plaintiff were able to establish a prima facie case
of discrimination based upon certain adverse employment
decisions, under the McDonnell Douglas framework, the burden

20

would then shift to Defendant to articulate a legitimate
non-retaliatory reason for its actions.

Terry, 660 F. App’x at

163 (quoting Jones, 198 F.3d at 410); see also McDonnell
Douglas, 411 U.S. at 802.3
Defendant contends that it denied Plaintiff’s request for
vacation in November 2013 in accordance with its established
vacation policy.

Pursuant to the policy, NAC typically permits

only one warehouse worker off on vacation at a time, so that it
is able to meet its business demands.

At the time Plaintiff

requested vacation around Thanksgiving 2013, another warehouse
worker, Blackwell, was already scheduled to be on vacation.

Due

to NAC’s business demands at the time, NAC could not have two
warehouse workers out on vacation at the same time and,
therefore, denied Plaintiff’s request.

Plaintiff admits that

“Privitera notified Nieves of [Plaintiff’s] request, which
Nieves considered and then denied, because of NAC’s business
demands.”

Pl. Resp. SOMF ¶ 85.

Defendant has also explained

that, at other times, when its cyclical business is not as
demanding, it will permit two warehouse workers to take vacation

3

As there is no evidence in the record that Privitera
required Plaintiff to perform more work than other workers, “NAC
has no legitimate non-discriminatory reason justifying its
non-existent ‘adverse employment action.’” Def. Br. at 22 n. 13
[Docket No. 16-1]. The Court agrees that there is no need to
proceed to the next step as to this purported action.
21

on the same days.
dispute this.

Def. SOMF ¶¶ 22, 86.

Plaintiff does not

Pl. Resp. SOMF ¶¶ 22, 86.

The Court finds that Defendant has carried its burden of
articulating a legitimate non-discriminatory reason for denying
Plaintiff’s vacation request in November 2013.
iii. Pretext
As NAC has articulated a legitimate, non-discriminatory
reason for its denial of Plaintiff’s request for vacation time
in November 2013, the burden shifts back to Plaintiff to
establish that the proffered reason is merely pretext for
discrimination.

Terry, 660 F. App’x at 163 (quoting Jones,

198 F.3d at 410).
A plaintiff can demonstrate pretext and, therefore,
withstand a motion for summary judgment by “point[ing] to some
evidence, direct or circumstantial, from which a factfinder
could reasonably either (1) disbelieve the employer’s
articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action.”

Fuentes v.

Perskie, 32 F.3d 759, 764 (3d Cir. 1994); accord Simpson v. Kay
Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644 (3d Cir.
1998).

To establish pretext, “[t]he plaintiff ‘cannot simply

show that the employer’s decision was wrong or mistaken’ but
rather ‘must demonstrate such ‘weaknesses, implausibilities,

22

inconsistencies, incoherences, or contradictions in the
employer’s proffered legitimate reason for its action that a
reasonable factfinder could rationally find them unworthy of
credence, and hence infer that the employer did not act for [the
asserted] nondiscriminatory reasons.’’”

Daniels v. Sch. Dist.

of Philadelphia, 776 F.3d 181, 199 (3d Cir. 2015) (quoting Ross
v. Gillhuly, 755 F.3d 185, 194 n. 13 (3d Cir. 2014) (quoting
Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 331 (3d Cir.
1995))).
“[S]ummary Judgment is essentially ‘put up or shut up’ time
for the non-moving party.”

Wiest v. Tyco Elecs. Corp., 812 F.3d

319, 330 (3d Cir. 2016) (quoting Berckeley Inv. Group, Ltd. V.
Colkitt, 455 F.3d 195, 201 (3d Cir. 2006)).

Yet, perplexingly,

Plaintiff does not even attempt to establish pretext or
otherwise challenge Defendant’s proffered legitimate
non-discriminatory reason for denying his vacation request in
November 2013.

Indeed, as Defendant points out, “the word

‘pretext’ appears nowhere in [Plaintiff’s] opposition brief.”
Def. Reply Br. at 2 [Docket No. 24].

Plaintiff readily admits

that his vacation request was denied “because of NAC’s business
demands.”

Pl. Resp. SOMF ¶ 85 (emphasis added).

This Court is “not required to scour the record to make the
case of a party who did nothing.”

United States v. Stevenson,

832 F.3d 412, 421 (3d Cir. 2016) (internal quotations,

23

citations, modifications omitted); accord Perkins v. City of
Elizabeth, 412 F. App’x 554, 555 (3d Cir. 2011) (“a court is not
obliged to scour the record to find evidence that will support a
party’s claims.”); Dawley v. Erie Indem. Co., 100 F. App’x 877,
881 (3d Cir. 2004) (“Rule 56 does not oblige a district court to
scour the entire record to find a factual dispute.”).
Accordingly, even if the denial of Plaintiff’s request for
vacation in November 2013 constituted an adverse employment
action for purposes of Plaintiff’s Title VII and NJLAD claims,
which it does not, Plaintiff has failed to meet his burden of
establishing that Defendant’s legitimate non-discriminatory
reason for the denial is mere pretext.

For this additional

reason, Defendant’s Motion for Summary Judgment is granted as to
Plaintiff’s race discrimination claims under Title VII and NJLAD
(Counts I, II).
B. Hostile Work Environment
Defendant urges the Court to grant summary judgment in its
favor on Plaintiff’s hostile work environment for three reasons.
First, Defendant argues that Plaintiff’s hostile work
environment claims are barred by the applicable statutes of
limitations.

Second, even if the claims were not time-barred,

Defendant contends that the alleged hostile conditions were
insufficiently severe and pervasive to constitute a hostile work
environment.

Finally, Defendant argues that it is protected

24

from liability by the Faragher-Ellerth affirmative defense.

The

Court considers each of these arguments in turn.
i. Statute of Limitations
Prior to pursuing a Title VII claim in court, a plaintiff
must first exhaust all required administrative remedies.

Mandel

v. M & Q Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013).

To

do so, a charge of unlawful employment practices must be filed
with the EEOC within 180 days of the occurrence of the alleged
unlawful practice or within 300 days, if the complainant first
filed a charge with the corresponding state agency.
§ 2000e-5(e)(1).
limitations.

42 U.S.C.

These deadlines are treated as a statute of

See Mandel, 706 F.3d at 165.

“[D]iscrete

discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges.”
(quoting Morgan, 536 U.S. at 113).

Id.

Additionally, although not a

prerequisite to bringing a claim under NJLAD in court, any
complaint filed with the NJDCR must be filed within 180 days of
the alleged discrimination.

N.J.S.A. § 10:5-18.

Moreover,

NJLAD claims are subject to a two-year statute of limitations.
Montells v. Haynes, 133 N.J. 282, 294-95 (1993).

This two-year

statute of limitations is not tolled by the filing of an
administrative claim.

Omogbehin v. Dimensions Int’l, Inc., 2009

WL 2222927, at *3 (D.N.J. July 22, 2009).

25

Each of the alleged racially discriminatory or harassing
comments made by Privitera occurred prior to Plaintiff’s April
15, 2013 grievance.

Yet Plaintiff did not file a charge of

discrimination with the NJDCR or the EEOC until July 18, 2014.
Def. SOMF ¶ 129.

This is well outside the 300-day period

specified by Title VII and the 180-day period specified by
NJLAD.

Additionally, Plaintiff filed the instant litigation in

state court on November 2, 2015, two and a half years after
Plaintiff filed his grievance in April 2013.

Accordingly, the

Court finds that Plaintiff’s hostile work environment claims are
barred by the applicable statutes of limitations.

Summary

judgment is granted as to Plaintiff’s hostile work environment
claims under Title VII and NJLAD (Counts I, III).4
ii.

Severity of Conduct

Even if Plaintiff’s hostile work environment claims were
not time-barred, Defendant argues that the undisputed record
establishes that Plaintiff was not subjected to a hostile work
environment.

“[T]he sine qua non of a hostile environment claim

is ‘a workplace . . . permeated with discriminatory

4

Plaintiff contends that, although Privitera’s racist
comments stopped in April 2013, Privitera continued to harass
him by, for example, assigning him more work than other
warehouse workers. As the Court explained above, however, there
is no evidence in the record to support Plaintiff’s claims that
he was assigned more work than other warehouse workers on the
basis of his race or that Privitera took any other
racially-motivated actions against Plaintiff.
26

intimidation, ridicule, and insult, that is sufficiently severe
or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment[.]’”

McKinnon v.

Gonzales, 642 F. Supp. 2d 410, 421 (D.N.J. 2009) (emphasis in
original) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 116 (2002)).

Accordingly, to establish a hostile work

environment claim against an employer, a plaintiff must prove:
(1) the employee suffered intentional discrimination on the
basis of race; (2) the discrimination was pervasive and regular;
(3) the discrimination detrimentally affected the plaintiff;
(4) the discrimination would detrimentally affect a reasonable
person who belonged to the same protected class; and (5) the
existence of respondeat superior liability.

Huston v. Procter &

Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009).
In determining whether an environment is hostile, “a court
must consider the totality of the circumstances, including ‘the
frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.’”

Mandel, 706 F.3d at 168 (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
“Title VII is not intended as a ‘general civility code,’ and
requires that ‘conduct must be extreme’ to constitute the kind
of ‘change in the terms and conditions of employment’ the

27

statute was intended to target.”

Burgess v. Dollar Tree Stores,

Inc., 642 F. App’x 152, 155 (3d Cir. 2016) (quoting Faragher v.
City of Boca Raton, 524 U.S. 775, 788 (1998)); see also Vance v.
Ball State Univ., 133 S. Ct. 2434, 2455 (2013) (Ginsburg, J.,
dissenting) (“Title VII imposes no ‘general civility code.’

It

does not reach ‘the ordinary tribulations of the workplace,’ for
example, ‘sporadic use of abusive language’ or generally boorish
conduct.”) (internal citations omitted).
Plaintiff’s hostile work environment claims are premised
upon the five racially-motivated comments allegedly made by
Privitera, which Plaintiff complained about in his April 2013
union grievance.

In his deposition, Plaintiff also testified

that another employee told him that, on unspecified occasions,
Privitera used racial epithets regarding African-Americans.
Plaintiff, however, never heard such statements himself and does
not know the context in which the epithets were allegedly
uttered.

Pl. Dep. 88:12-89:21.

Plaintiff admits that Privitera

made no racially-insensitive comments after Plaintiff filed his
grievance in April 2013.

Def. SOMF ¶ 81.5

5

Plaintiff contends that, even though Privitera did not
make any further racist comments, he nonetheless continued to
discriminate against Plaintiff by denying his vacation request
in November 2013 and unevenly assigning work. As the Court
found above, there is no evidence in the record to support
Plaintiff’s contention that these were race-based discriminatory
or harassing acts.
28

While the Court finds Privitera’s alleged statements to be
racially-insensitive and contemptible, for the following
reasons, the Court nonetheless agrees with Defendant that they
do not rise to the level of a hostile work environment.
Plaintiff reported these statements in April 2013 and
testified that, although he did not recall the exact dates, the
statements likely occurred within roughly one to two years prior
to his grievance.

Pl. Dep. 80:22-81:3, 196:13-199:2.

All such

comments ceased in April 2013, although Privitera continued to
supervise Plaintiff through his termination in May 2016.

While

Privitera’s comments were certainly offensive, “not every
comment, action or joke creates a hostile work environment.
That is, ‘[t]he mere utterance of an epithet, joke, or
inappropriate taunt that may cause offense does not sufficiently
affect the conditions of employment to implicate . . .
liability.”

Miller v. Thomas Jefferson Univ. Hosp., 565

F. App’x 88, 93-94 (3d Cir. 2014) (quoting Weston v.
Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001)).

A handful of

offhand comments--even if racially-insensitive--over the course
of several years does not rise to the level of severe and
pervasive discrimination, as required to establish a hostile
work environment claim.

See, e.g., Faragher, 524 U.S. at 788

(“[S]imple teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory

29

changes in the terms and conditions of employment.”); Park v.
Sec’y U.S. Dep’t of Veterans Affairs, 594 F. App’x 747, 751
(“‘Title VII’ is not violated by the ‘mere utterance of an . . .
epithet which engenders offensive feelings in an employee’ or by
mere discourtesy or rudeness . . .”) (quoting Abramson v.
William Paterson Coll. of N.J., 260 F.3d 265, 280 (3d Cir.
2001)); Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir.
2005) (“[W]e are mindful that ‘offhanded comments, and isolated
incidents (unless extremely serious)’ are not sufficient to
sustain a hostile work environment claim.”).
Likewise, in assessing the severity of the comments, the
Court notes that Plaintiff was not the subject of any of the
comments.

Indeed, he was not even present when Privitera

allegedly used racial epithets.

“[C]omments referring to other

individuals that were merely overheard by [Plaintiff] are the
sorts of ‘offhanded comments and isolated incidents’ that the
Supreme Court in Faragher . . . cautioned should not be
considered severe or pervasive enough to constitute a hostile
work environment.”

Caver, 420 F.3d at 263.

Moreover,

Privitera’s comments were not physically threatening or
humiliating and there is no evidence that Privitera’s comments
unreasonably interfered with Plaintiff’s work performance.
Having assessed the totality of the circumstances, the
Court finds that the undisputed facts establish that Privitera’s

30

comments and conduct, while offensive, did not rise to the level
of pervasive and severe discrimination.

The evidence simply

does not support a finding that Plaintiff’s workplace was so
“permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the
conditions of [his] employment and create an abusive working
environment.”

Morgan, 536 U.S. at 116 (internal quotations and

citations omitted).

There is no evidence from which a jury

could determine that Plaintiff was subjected to a hostile work
environment.

Accordingly, even if Plaintiff’s hostile work

environment claims were not barred by the statute of
limitations, summary judgment must nonetheless be granted as
Plaintiff’s hostile work environment claims under Title VII and
NJLAD (Counts I, III).
iii. Faragher-Ellerth Defense
Even if Plaintiff could establish a hostile work
environment, Defendant contends that it is nonetheless protected
from respondeat superior liability on the basis of the
Faragher-Ellerth defense.

The affirmative defense applies only

when the plaintiff employee has not suffered a tangible
employment action.

Jones v. Se. Pa. Transp. Auth., 796 F.3d

323, 328 (3d Cir. 2015) (quoting Pa. State Police v. Suders,
542 U.S. 129, 143 (2004)).

In such cases, the Faragher-Ellerth

defense protects an employer from liability where “the employer

31

‘exercised reasonable care to avoid harassment and to eliminate
it when it might occur’ and the complaining employee ‘failed to
act with like reasonable care to take advantage of the
employer’s safeguards and otherwise to prevent harm that could
have been avoided.”

Jones, 796 F.3d at 328 (quoting Faragher,

524 U.S. at 805).
As a preliminary matter, the defense is available to NAC as
Plaintiff did not suffer a “tangible employment action” as a
result of any of Privitera’s alleged discriminatory comments or
actions.

Id.

“The Supreme Court has defined a ‘tangible

employment action’ as ‘a significant change in employment
status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision
causing a significant change in benefits.’”
Ellerth, 524 U.S. at 761).

Id. (quoting

As the Court previously noted above,

there is no evidence in the record that even suggests that
Plaintiff has suffered any change in his employment status, let
alone a significant change, that could constitute a tangible
employment action.
Having established that the defense is available to NAC,
the Court next considers whether NAC satisfies the two prongs of
the Faragher-Ellerth defense and, for the following reasons,
finds that it does.

As for the first prong, the Court finds

that NAC “exercised reasonable care to avoid harassment and to

32

eliminate it when it might occur.”

Faragher, 524 U.S. at 805.

NAC promulgated anti-discrimination and anti-harassment
policies, which explicitly prohibit race-based harassment and
direct employees to report any harassment or discrimination to
its Human Resources Department.

Def. SOMF ¶¶ 5-6.

Additionally, when Plaintiff filed his first union grievance in
April 2013, NAC promptly commenced an investigation into
Plaintiff’s allegations.

As part of the investigation,

Johansen, NAC’s Human Resources Generalist, interviewed five
employees and made specific findings, which were reported to
Plaintiff.
findings.

She also disciplined Privitera based upon her
Def. SOMF ¶¶ 73-76, 78-80.

Privitera’s

racially-insensitive comments ceased after Plaintiff filed the
grievance.

Id. ¶ 81.

This is sufficient to satisfy the first prong of the
defense.

Jones, 796 F.3d at 329 (holding that defendant

employer satisfied Faragher-Ellerth defense where employer
“conducted an investigation, made findings, developed a ‘plan of
action,’ required [alleged harasser] to attend a counseling
session, and gave him a demerit on his evaluation.”).

Plaintiff

has identified no disputes of fact in the record that suggest
that Defendant’s investigation was anything but thorough.
Instead, it appears that Plaintiff simply disagrees with the
investigation’s conclusion.

Additionally, contrary to

33

Plaintiff’s assertion, see Pl. Opp. Br. at 21 [Docket No. 23], a
defendant is not required to terminate an alleged harasser in
order to satisfy this prong.

See Jones, 796 F.3d at 329 (“[A]

showing that discipline was imposed is not required to prove
that an employer’s remedial action was adequate.”).
Furthermore, the undisputed record demonstrates that
Plaintiff “failed to act with like reasonable care to take
advantage of the employer’s safeguards and otherwise to prevent
harm that could have been avoided.”

Faragher, 524 U.S. at 805.

Plaintiff first complained to NAC about Privitera’s alleged
racist comments in April 2013.

By his own admission, however,

the incidents occurred well before he reported them to NAC in
his April 2013 grievance, perhaps even years earlier.
Dep. 80:22-81:3, 196:13-199:2.

Pl.

He concedes that he did not

report any of these comments to Human Resources or any NAC
supervisor, including Nieves, before he filed his April 2013
grievance, even though he was aware of NAC’s anti-harassment
policies and knew that he had the ability to report the alleged
harassment to NAC’s Human Resources Department.
¶¶ 14-15, 66.

Def. SOMF

Plaintiff testified that he did not raise his

concerns earlier because he thought nothing would be done if he
complained.

Id. ¶ 67.

There is no evidence in the record to

suggest that Plaintiff’s belief was reasonable or anything
beyond pure speculation.

34

Under these circumstances, the Court cannot find that
Plaintiff acted with reasonable care to take advantage of NAC’s
safeguards and prevent further harms.

See Jones, 796 F.3d at

329 (holding that defendant employer satisfied second prong of
Faragher-Ellerth defense where plaintiff alleged that she
suffered years of harassment, yet did not make any complaints,
even though she knew that she could report complaints to
employer’s EEO office); see also Amati v. U.S. Steel Corp., 304
F. App’x 131, 134 (3d Cir. 2008) (affirming district court’s
determination that defendant satisfied Faragher-Ellerth defense
where plaintiff did not report harassment until months after
harassment occurred, despite the fact that she was aware of
available reporting procedures).

The Court finds that Defendant

has established that it is shielded from liability by the
Faragher-Ellerth defense.

Accordingly, for this additional

reason, summary judgment is granted on Plaintiff’s hostile work
environment claims under Title VII and NJLAD (Counts I, III).
IV.

CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary

Judgment is granted.
prejudice.

Plaintiff’s Complaint is dismissed with

An appropriate Order shall issue on this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

Dated: June 6, 2017

35