SHINN et al v. FEDEX FREIGHT, INC. et al

Filing 45

OPINION. Signed by Judge Noel L. Hillman on 9/7/2018. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

STANLEY SHINN and PAUL ELLIS,
Plaintiffs,

1:16-cv-777 (NLH/KMW)
OPINION

v.
FEDEX FREIGHT, INC. and FEDEX
CORPORATION,
Defendants.

APPEARANCES:
GRAHAM FAVILLE BAIRD
LAW OFFICES ERIC A. SHORE, P.C.
TWO PENN CENTER
1500 J.F.K. BOULEVARD
SUITE 1240
PHILADELPHIA, PA 19102
On behalf of Plaintiffs
DAVID S. FRYMAN
AMY LEIGH BASHORE
BALLARD SPAHR LLP
210 LAKE DRIVE EAST
SUITE 200
CHERRY HILL, NJ 08002-1163
On behalf of Defendant FedEx Freight, Inc.
HILLMAN, District Judge
This is an employment retaliation suit brought under the
New Jersey Law Against Discrimination (NJLAD) and the Family and
Medical Leave Act (FMLA) by former drivers for Defendant FedEx
Freight.

Before the Court is Defendant’s Motion for Summary

Judgment.

For the reasons that follow, the Court will grant

summary judgment in favor of Defendant.

I.
Unless otherwise indicated, the Court takes its facts from
Defendant’s Statement of Material Facts and Plaintiffs’
Response.

From November 2003 to May 2015, Shinn was what is

referred to in the record as a “City Driver” for FedEx at its
Delanco, New Jersey Service Center.

From 2004 to July 2015,

Ellis was also a City Driver for FedEx at its Service Center.
In general, FedEx City Drivers pick up and deliver freight to
customers.
FedEx maintained an Electronic Employee Handbook accessible
to employees, which included anti-discrimination/retaliation and
standards of conduct policies.

Shinn and Ellis signed forms

acknowledging FedEx’s Electronic Employee Handbook, which
included references to those policies.
received training on workplace violence.

FedEx employees also
Shinn and Ellis both

signed forms acknowledging FedEx’s Workplace Violence policy.
On March 20, 2015, FedEx discussed workplace violence in a preshift meeting with drivers at the Service Center.

Plaintiffs

signed a form acknowledging their attendance at this meeting.
A. April 29, 2015 Break Room Incident
On April 30, 2015, FedEx employee Jeremy Homan reported to
Service Center Manager Chuck Long that an incident had occurred
between Steve Buckley, another FedEx City Driver, and Shinn in
the break room the previous day.

Other employees also reported
2

the incident to Long.

As a result, FedEx Security Specialist

Charles Bergeron investigated the incident on May 7, 2015, which
included interviewing Shinn, Ellis, Buckley, and eleven others
who were present in the break room at the time of the incident.
Shinn testified at his deposition that on the day of the
incident Shinn was sitting at his regular table with Ellis and
some other drivers.
walked over to Homan.

(Tr. at 29-30).
(Tr. at 31).

Buckley then came in and
Buckley “said something

about Facebook fag or something like that or union fag,” at
which point Shinn said “what are you talking about.”
31).

(Tr. at

Buckley then “came over to the table and he stuck his

finger out, he said I’m talking about you and your girlfriend,
Paul Ellis.” (Tr. at 31).
A.

And then, you know, it just kind of went from
nowhere to where he’s screaming at me and I’m
screaming at him. And he kept jabbing his finger
in my face. And then he kind of like ended it with
a pretty nasty homosexual slur about me and Paul.
And then he turned around and walked away, and said
something about he’s tired of you union fags, and
walked out of the room.

Q.

Okay.
Do you recall what you were screaming at
each other?

A.

Well, of course there was a lot of name calling on
both parts.
I think I said, you know, let’s go
outside away from everybody and talk about this. I
guess he took it [as] a fighting term. But I was
just – we had been friends a long time, so I thought
maybe we could just talk about it and work it out
but . . .

Q.

Do you recall anything else you guys were screaming
3

about in that exchange?
. . . .
A.

It’s a truck drivers room.
I don’t know if you
really – I really feel uncomfortable repeating
them. They were pretty bad. . . . I called him an
F’ing P, for a lady.
. . . .

Q.

Do you recall any names he was calling you?

A.

Yeah. He referred to me and Paul as both Facebook
fags and union fags a couple different times.

(Tr. at 31-35).

There was thereafter a less heated conversation

on the dock, in which Shinn asked if Buckley wanted to talk
about it, but Buckley declined.

(Tr. at 35-36).

According to Shinn, he was called into Long’s office and
told that he was discharged, effective May 21, 2015, due to the
incident with Buckley.

Shinn later filed an internal appeal of

his termination with FedEx’s Termination Appeal Review Committee
(TARC), which upheld his termination.

Defendant contends the

legitimate reason for Shinn’s termination was that he made a
threat that violated its workplace violence policy.
B. June 28, 2015 Facebook Post
On June 29, 2015, a FedEx employee gave Long a printed
screenshot of Facebook postings made by Ellis and Shinn on June
28, 2015, which read:
Stan Shinn:

It’s funny how low Snakes in the grass
will stop to kiss a little fedex ass[.]
people you used to trust and I called
4

friend sneake [sic] up and ambush you and
get me fired just to look good for
fedex[.] I wonder who they [are] going
to send steve [Buckley] after next
Paul Ellis:

Me . . . that fucker just waltz’s down
the dock every morning happy as can be .
. . like nothing happened . . . given the
chance . . . he’s gonna have an accident
on the dock . . . .

Stan Shinnn:

Nothing lower than a fellow
getting another worker fired

Paul Ellis:

YUP He’s a SCUMBAG

worker

Long was concerned about the message, taking it as a
workplace violence incident.

Accordingly, he forwarded it to

Employee Relations Manager Brian Jenkins.
investigated.

Bergeron

According to Bergeron, Ellis admitted he

recognized the post, but claimed he meant that Buckley could get
injured because he was not paying attention on the dock.
However, according to Bergeron, Ellis advised that he could see
how the words he used could be perceived as a threat.
FedEx determined that Ellis’s comments in the Facebook post
violated the workplace violence provisions in its Conduct of
Employees policy.

Consequently, FedEx discharged Ellis

effective July 9, 2015.

Ellis admitted that FedEx’s policy

prohibiting workplace violence states that it is not limited to
physical assaults, but could include written or spoken threats.
He also admitted that the policy provides that FedEx could
discharge employees for incidents of workplace violence.
5

Ellis

filed an internal appeal of his termination with FedEx’s TARC,
which upheld his termination.

Defendant contends this is the

legitimate reason for Ellis’s termination.
C. FMLA Leave
Ellis has spinal injuries that cause him significant back
and neck problems.

(Tr. at 109).

Consequently, Ellis was

approved for FMLA leave during his employment with Defendant.
(Tr. at 109).

He was also approved for leave to take care of

his sick mother, again under FMLA.

(Tr. at 111-12).

On May 22, 2015, Ellis called out sick because of pain.
(Tr. at 123-25).

Either the day before or the day before that,

he had called out to take care of his mother.

(Tr. at 140).

Later that day, Ellis saw messages on Facebook from Roy Fonseca,
another driver, saying Defendant had Ellis lined up to make
deliveries to the retailer BJ’s.

(Tr. at 125).

When Ellis told

Fonseca he was not making it in, Fonseca told him Jenkins was
mad.

(Tr. at 129).

Ellis questioned why a “9 o’clock start

guy” would be taking that trailer, since he estimated it was
loaded around 5:00 AM.

(Tr. at 128).

on his normal run delivery area.

Ellis stated it was not

(Tr. at 128).

Ellis said that while some guys like going to BJ’s, he
“cannot deal with that because [he] h[as] to sit for hours and
hours and hours in the driver’s room, waiting and waiting and
waiting for that to get unloaded.”
6

(Tr. at 130).

He has told

people, including Brian McGee and Long, that he does not want to
go to BJ’s.

(Tr. at 135).

He estimated that he has done a BJ’s

delivery more than five times, but was unable to estimate
whether he had done a delivery there more or less than ten
times.

(Tr. at 136).

Q.

Do you know how many times – do you know whether
you . . . ever did a BJ’s run after you requested
FMLA leave?

A.

There was enough times that it revealed a pattern.

Q.

And what do you mean by that?

A.

If I called out for FMLA, you could be expecting a
trip to BJ’s. And if it wasn’t BJ’s, it would be
a full trailer for what would be normally one of my
normal customers, Performance Food Group and
Dunkin’ Donuts, where it would be driver unload,
sort and segregate. 12, 14, 15, 16,000 pounds of
freight, breaking down hundreds and hundreds and
hundreds of pieces.
. . . .

Q.

When is it, is it your convention that you would
receive one of these assignments after having
called out for FMLA?

A.

If it wasn’t the next day, it was close enough that
I would be able to say, boy, this is no coincidence.

Q.

But you agree these were part of your regular job
duties; correct?

A.

Breaking down freight, yeah. That could be. To
have a whole trailer load thrown on you, no, that’s
not, that’s not – not, not your average day. You
know, maybe a couple skids. But certainly not whole
trailer loads.

(Tr. at 136-37).

When asked whether there were other occasions

7

when he had full trailers, he said “[t]ypically, no.

Because

that would be considered a volume run, and that would go out to
somebody that had earlier start time.”

(Tr. at 138).

Ellis contends that FMLA leave was the reason for the
termination of his employment – that “they got tired of [him]
inconveniencing them with taking random time off, it monkeywrenched their schedule.”

(Tr. at 141-42).

He based this on

the times he had “paybacks for taking off” and “just the
attitudes that [he] would get from different people in
management.”

(Tr. at 142).

Ellis testified at his deposition

that FedEx had a “pattern” of assigning him to BJ’s or to
deliver a “full trailer” to Performance Food Group or Dunkin
Donuts either the next day or very soon after he took FMLA
leave.

He testified at his deposition:

I distinctly remember saying to Brian, you know, it’s
getting to be tit-for-tat with this stuff. You know,
you guys are making it, you guys are making it hard to
come in here, because I know that there’s going to be
punishment when I take my Family Medical Leave. And you
know, it’s getting, it’s getting hard to – I forget my
exact words, but it’s getting hard for me to come into
work. I don’t like what’s going on.
And he said, he said, well, good luck with that. And I
said what do you mean.
And he says, well, who would
hire someone like you.
Defendant maintains the legitimate reason for Ellis’s
assignment to BJ’s or any other less desirable job was because
of business demands.

FedEx did not guarantee any driver,

8

including Ellis, a specific route or set of customers.

When

practicable, FedEx tried to assign drivers to make deliveries in
a customary geographic area with which they are familiar but,
for business reasons, does not always do so.

Business issues on

any given day dictated where a driver was assigned that day
since FedEx has built its business on delivering freight on
time.
FedEx’s Service Center sent drivers to BJ’s virtually every
work day.

FedEx did not have a designated driver for BJ’s;

dozens of drivers serviced BJ’s.

While BJ’s was not one of

Ellis’s customary customers, it was in the same geographic area
in which he usually delivered.

Ellis serviced BJ’s 6 times

between January 1, 2013 and July 9, 2015.

FedEx assigned Ellis

to BJ’s both before and after he was first certified for FMLA
leave on July 2, 2013.
D. Procedural Posture
Plaintiffs filed a state court complaint against Defendants
FedEx Freight, Inc. and FedEx Corporation on January 15, 2016.
On February 12, 2016, Defendants removed the case to federal
court.

On March 22, 2016, Plaintiffs voluntarily dismissed

their claims against Defendant FedEx Corporation.

Plaintiffs

thereafter filed an Amended Complaint on April 13, 2016.

On May

6, 2016, FedEx Freight filed a Motion to Dismiss, which this
Court granted in part and denied in part on December 7, 2016.
9

Plaintiffs thereafter filed a January 6, 2017 Second Amended
Complaint, asserting three claims: (1) an FMLA claim by Ellis,
(2) an NJLAD claim by both Plaintiffs, and (3) a common law
wrongful termination claim by both Plaintiffs.

On January 12,

2018, Defendant filed a Motion for Summary Judgment.
II.
The Court has federal question subject matter jurisdiction
over this matter pursuant to 28 U.S.C. § 1331.
III.
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,’ . . . demonstrate the absence of a genuine
issue of material fact” and that the moving party is entitled to
a judgment as a matter of law.

Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56).
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.
248 (1986).

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

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;
10

instead, the non-moving party’s evidence ‘is to be believed and
all justifiable inferences are to be drawn in his favor.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)
(citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment
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.”); see Singletary v. Pa.
Dep’t of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although
the initial burden is on the summary judgment movant to show the
absence of a genuine issue of material fact, ‘the burden on the
moving party may be discharged by “showing” – that is, pointing
out to the district court – that there is an absence of evidence
to support the nonmoving party’s case’ when the nonmoving party
bears the ultimate burden of proof.” (citing Celotex, 477 U.S.
at 325)).
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.
11

Celotex, 477

U.S. at 324.

A “party opposing summary judgment ‘may not rest

upon the mere allegations or denials of the . . . pleading[s].’”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

For

“the non-moving party[] to prevail, [that party] must ‘make a
showing sufficient to establish the existence of [every] element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.’”

Cooper v. Sniezek, 418

F. App’x 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at
322).

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
the moving party.

Anderson, 477 U.S. at 257.
IV.

The Court finds summary judgment is appropriate as to all
counts asserted in Plaintiffs’ Second Amended Complaint.

The

Court begins with the NJLAD retaliation claim.
A. NJLAD Retaliation
The Court will grant summary judgment on Plaintiffs’ NJLAD
claim for failure to establish a causal link between
participation in a protected activity and any retaliation.
The NJLAD provides:
It shall be an unlawful employment practice, or, as the
case may be, an unlawful discrimination . . . [f]or any
person to take reprisals against any person because that
person has opposed any practices or acts forbidden under
this act because that person has filed a complaint,
12

testified or assisted in any proceeding under this act
or to coerce, intimidate, threaten or interfere with any
person in the exercise of enjoyment of, or on account of
that person having aided or encouraged any other person
in the exercise or enjoyment of, any right granted or
protected by this act.
N.J.S.A. 10:5-12(d).

“[T]o establish a prima facie case of

discriminatory retaliation, plaintiffs must demonstrate that:
(1) they engaged in a protected activity known by the employer;
(2) thereafter their employer unlawfully retaliated against
them; and (3) their participation in the protected activity
caused the retaliation.”

Tartaglia v. UBS PaineWebber, Inc.,

961 A.2d 1167, 1193 (N.J. 2008) (quoting Craig v. Suburban
Cablevision, Inc., 660 A.2d 505, 508 (N.J. 1995)).
Under the framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), after a plaintiff establishes a prima facie
case of discrimination, an inference of unlawful discrimination
is created.

Willis v. UPMC Children's Hosp. of Pittsburgh, 808

F.3d 638, 643–45 (3d Cir. 2015). 1

The burden then shifts to the

employer who must articulate a legitimate nondiscriminatory
reason for the adverse employment action.
omitted).

Id. (citations

This second step of McDonnell Douglas does not

require that the employer prove that the articulated legitimate,
nondiscriminatory reason was the actual reason for the adverse

1

New Jersey courts have adopted the burden-shifting analysis
established in McDonnell Douglas to NJLAD cases. Rich v. State,
294 F. Supp. 3d 266, 279 (D.N.J. 2018).
13

employment action, but instead the employer must provide
evidence that will allow the factfinder to determine that the
decision was made for nondiscriminatory reasons.

Id. (citations

omitted).
If the employer satisfies this second step, the burden
shifts back once more to the plaintiff to show, by a
preponderance of the evidence, that the employer's proffered
legitimate, nondiscriminatory reason was pretextual – that not
only was the employer's proffered reason false, but the real
reason was impermissible discrimination.
in two ways:

Id.

This can be done

(1) by pointing to evidence that would allow a

factfinder to disbelieve the employer's reason for the adverse
employment action by showing such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons, or (2) by pointing to
evidence that would allow a factfinder to believe that an
invidious discriminatory reason was more likely than not a
motivating or determinative cause of the employer's action,
which can be shown by (1) the defendant having previously
discriminated against the plaintiff; (2) the defendant having
discriminated against others within the plaintiff's protected
class; or (3) the defendant has treated similarly situated
individuals more favorably.

Id. (citations and quotations

omitted).
14

Plaintiffs’ Second Amended Complaint asserts two bases for
NJLAD retaliation: (1) “retaliation for participating in an
investigation after an incident in the lunch room in which
Plaintiffs were referred to as ‘union fags’ and ‘Facebook fags’”
and (2) “retaliation for raising complaints to Defendants’
management and/or Human Resources concerning the lunch room
incident.”
Defendant argues Plaintiffs cannot use “raising complaints”
concerning the incident as a basis for their NJLAD claim, as
they admit they did not report the incident.

It is agreed in

their Statement of Material Facts that both Shinn and Ellis
admitted at deposition that they did not report the break room
incident to Defendant.

As to Shinn, he admitted in his

deposition that he did not report the incident to Defendant.
(Tr. at 38).

As to Ellis, he also stated he did not know who

reported the incident to Defendant.

(Tr. at 106).

Accordingly,

that leaves Plaintiffs’ participation in the investigation as
the sole basis for the NJLAD claim.

Defendant argues that

Plaintiffs cannot make a prima facie case because they have not
established a causal link.

The Court agrees.

Plaintiffs contend that “[t]he temporal proximity alone
from the lunchroom/break room incident to the termination of the
Plaintiffs creates an inference of retaliation that should be
left to the jury to determine.”

(Pl. Br. 6).
15

Temporal

proximity alone will be insufficient to establish the necessary
causal connection, however, when the temporal relationship is
not “unusually suggestive.”

Farrell v. Planters Lifesavers Co.,

206 F.3d 270, 280 (3d Cir. 2000).

“[I]f temporal proximity is

not clearly suggestive standing alone, a ‘time plus’ other
intervening retaliatory acts will be required.”

Id.; accord

Gladysiewski v. Allegheny Energy, 398 F. App’x 721, 723 (3d Cir.
2010) (“We have recognized two primary ways to substantiate a
causal connection between the protected activity and an adverse
employment action: showing that the temporal between the two is
‘unusually suggestive,’ or pointing to an ‘ongoing antagonism’
between the plaintiff and defendant.”
at 280-81)).

(citing Farrell, 206 F.3d

“While there is no per se rule about relying on

temporal proximity to establish causation in retaliation cases,
the probative value depends on ‘how proximate the events
actually were, and the context in which the issue came before
us.’”

Kellerman v. UPMC St. Margaret, 317 F. App’x 290, 292-93

(3d Cir. 2009) (quoting Farrell, 206 F.3d at 279). 2

2

The same is true of causation in FMLA cases. See, e.g.,
Caplan v. L Brands/Victoria’s Secret Stores, LLC, 210 F. Supp.
3d 744, 759-60 (W.D. Pa. 2016) (“Evidence that the temporal
proximity between the employee’s protected activity and the
alleged retaliatory action is unusually or unduly suggestive of
retaliatory motive can satisfy the causal link requirement.
Where the temporal proximity is not sufficient to imply direct
causation, evidence of a pattern of ongoing antagonism or an
employer’s inconsistent reasons for terminating an employee may
satisfy the third element of the prima facie case.” (citing
16

The Court discerns the following timeline of relevant
events:
04/29/2015
05/07/2015
05/21/2015
05/22/2015
06/28/2015
07/09/2015

Break room incident
Investigation of break room incident
Effective date of Shinn’s discharge
FMLA leave and BJ’s run
Facebook post
Effective date of Ellis’s discharge

The difference in time between the investigation and
Shinn’s discharge is two weeks.

The difference in time between

the investigation and Ellis’s discharge is about two months.
Beginning with Shinn, while two weeks under certain
circumstances might be temporally close enough to the protected
conduct to allow an inference of causation, that is not the case
here, as the legitimate reason advanced by Defendant for Shinn’s
termination was his involvement in the break room incident,
which occurred a little over a week before the investigation.
Thus, the Court is unable to find causation based on timing
alone.
As to Ellis, the time between the two events is much
longer, and there was the intervening event of the June 28, 2015
Facebook post, which was much closer in time to his July 9, 2015

Farrell, 206 F.3d at 280-81)); Mascioli v. Arby’s Rest. Grp.,
Inc., 610 F. Supp. 2d 419, 436 (W.D. Pa. 2009) (“[T]he Third
Circuit articulated two main factors that are relevant with
respect to establishing a causal link to satisfy a prima facie
case of retaliation: (1) timing or (2) evidence of ongoing
antagonism.”).
17

termination.

“[I]nferring a causal relationship between the

protected activity and the adverse action is not logical when
the two are separated by an intervening event that independently
. . . caused the adverse action.”

Houston v. Dialysis Clinic,

Inc., No. 13-4461, 2015 U.S. Dist. LEXIS 83151, at *33 (D.N.J.
June 26, 2015) (second alteration in original) (quoting Mizusawa
v. U.S. Dep’t of Labor, 524 F. App’x 443, 448 (10th Cir. 2013)).
Thus, the Court cannot credit Plaintiffs’ argument that “the
temporal proximity of the Defendant’s termination of the
Plaintiffs’ employment to the Plaintiffs’ participation in the
Title VII investigation precludes summary judgment.” (Pl. Br. at
2).
“Differential treatment of the plaintiff and similarly
situated employees can support the inference [of a causal
link].”

Kacian v. Postmaster Gen. of the U.S, 653 F. App’x 125,

129 (3d Cir. 2016).

Shinn argues “there was another incident

involving Steve Raidy who asked another driver to step outside
and go across the street to purportedly fight and was not
terminated by Defendant.”

(Pl. Br. 14).

Plaintiff cites

McGee’s deposition, Long’s deposition, and Buckley’s deposition
for this comparison.

The Court looks to them each in turn,

beginning with McGee:
Q.

Do you ever remember any other drivers besides Mr.
Buckley being suspended for arguments or statements
that they were making to fellow drivers?
18

A.

Yes.

Q.

Okay.

A.

I believe that was Steve Radie got into an argument
in the break room.

Tell me about that.

. . . .
Q.

Okay.

When did that happen?

A.

I really don’t remember.

Q.

More than five years ago?

A.

No.

Q.

Okay.

A.

Yes.

Q.

So between five years and one year?

A.

Yes.

Q.

And do you remember anything in more detail about
what was said by Mr. Radie?

A.

I really don’t remember.

Q.

Do you remember the other driver or drivers that
Mr. Radie was arguing with?

A.

I don’t remember.

I don’t remember.

More than one year ago?

(Tr. at 33-35).
Buckley testified as follows:
Q.

Do you know what happened with Mr. Raidy at FedEx?

A.

What do you mean what happened.

Q.

I don’t know. There was an incident involving Steve
Raidy. Do you remember what that was?

19

A.

I think he – from what I heard, he did the same
thing. He asked another driver across the street
to settle something.

Q.

When did that happen?

A.

That I couldn’t tell you.

I don’t know.

. . . .
Q.

Do you know whether Mr. Raidy got fired because he
asked somebody to cross the street?

A.

I don’t think he got fired.
. . . .

Q.

Do you remember the driver who Raidy was arguing
with?

A.

I believe it was Jim Erickson.

Q.

Do you remember anything else about the Steve Raidy
matter?

A.

No.

(Tr. at 29-30).
Long testified at his deposition as follows:
Q.

. . . Do you remember what the Steve Radie incident
is?

A.

No.

Q.

Okay.

A.

An employee of FedEx.

Q.

Is he a driver?

A.

Yes.

Q.

Is he still an employee at FedEx?

A.

No, he resigned.

Who is Steve Radie?

20

. . . .
Q.

All right.
All right.
Do you know whether he
resigned because of a workplace violence incident?

A.

He did not resign because of that.

Q.

Okay.
Do you know what the workplace violence
incident was that related to the Steve Radie
incident?

A.

No.

Q.

Okay. Do you know whether another driver was being
violent towards Steve Radie?

A.

No.

Q.

Do you know whether Steve Radie was being violent
towards another driver?

A.

Not to my knowledge.

Q.

Did you ever conduct an investigation involving the
Steve Raide incident?

A.

No.

Q.

Do you know why Mr. Raide resigned?
. . . .

A.

. . . He took another job somewhere else.
. . . .

Q.

Okay. Based on Jenkins Exhibit No. 2, it appears
that you conducted a workplace violence prevention
pre-shift that we talked about in response to or
after the Steve Radie incident.
Would you agree
with that?

A.

Yes.

Q.

But sitting here today, you have no recollection
about that incident?
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A.

No, sir.
sir.

It was never brought to my attention, no,

Q.

Do you remember talking with anyone about a Steve
Radie incident?

A.

No.

(Tr. at 48-50).
The Court finds these vague descriptions of the “Radie
incident” to be insufficient to show differential treatment such
that the Court can find a causal link.

In response to a summary

judgment motion, Plaintiffs must show “specific facts and
affirmative evidence” demonstrating a genuine issue for trial.
See Anderson 477 U.S. at 257; Celotex, 477 U.S. at 324.

The

vague descriptions of the “Raide incident” does not pass this
threshold.
Plaintiffs provide no other basis for this Court to find a
causal link.

The Court will therefore grant summary judgment on

their NJLAD claims because they have not established their prima
facie case of retaliation. 3

3 Even

if Plaintiffs met their prima facie case, their retaliation
claims still fail because they cannot rebut Defendant’s
legitimate business reason for their termination. For Shinn,
Defendant states that it terminated Shinn’s employment because
his incident with Buckley in the break room violated Defendant’s
workplace violence policy. Shinn has not provided evidence that
would allow the factfinder to disbelieve that reason. Indeed,
in Shinn’s deposition, when asked why he thought he was
terminated, he stated, “I guess because they thought I was
violating their harassment policy by arguing with Buckley
instead of just walking away and reporting it.” Shinn also
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B.

FMLA Retaliation

The Court also concludes Ellis’s FMLA retaliation claim
cannot survive summary judgment.

“To state a prima facie case

for FMLA retaliation, a plaintiff must show that: (1) she
invoked her FMLA rights; (2) she suffered an adverse employment
action; and (3) the adverse action was causally related to the
plaintiff’s exercise of her FMLA rights.”

Fiorentini v. William

Penn Sch. Dist., 665 F. App’x 229, 236 (3d Cir. 2016).

“FMLA

states that he “truly believe[d] part of it was [his]
involvement with the union,” a claim that is no longer in the
case, but even accepting that sentiment as true, he does not
refute that the other part of Defendant’s reason for terminating
him was based on its view, after an investigation involving
eleven other employee witnesses, that he violated the workplace
violence policy. Thus, Shinn has not shown that the motivating
cause of his termination was based on a discriminatory reason.
With regard to Ellis, Defendant proffers that it also terminated
him for his violation of the workplace violence policy based on
Facebook postings which threatened Buckley’s safety on the dock.
Ellis admits he made this posting, but argues that he meant that
Buckley could get injured because he was not paying attention on
the dock. Similar to Shinn, even if a jury accepted that Ellis
did not intend his posting to be threatening to Buckley, Ellis
has provided no proof that Defendant’s determination that the
posting violated the workplace violence policy was not
legitimate and improperly motivated by discriminatory intent.
The ultimate issue is whether “discriminatory animus motivated
the employer,” and it is not enough to show that the employer
made a “wrong or mistaken” decision. Fuentes v. Perskie, 32
F.3d 759, 765 (3d Cir. 1994). Plaintiffs may disagree with
Defendant’s conclusion that they violated the workplace violence
policy, but Plaintiffs have not provided any material disputed
facts that would show that Defendant had discriminatory animus
in coming to that conclusion.
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retaliation claims are analyzed under the lens of employment
discrimination law and claims based on circumstantial evidence
are evaluated under the burden-shifting framework of McDonnell
Douglas Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d
294, 302 (3d Cir. 2012).”

Id.

The Court finds that Ellis has failed to show sufficient
evidence of a causal relation to survive summary judgment.

It

appears Ellis is alleging adverse employment action both in his
termination and the earlier assignment of the BJ’s trips.

As to

his termination, again temporal proximity alone will not suffice
to show a causal link.

Ellis stated he called out and was given

the BJ’s job on May 22, 2015 but his termination was not until
July 9, 2015.

Further, the Facebook post incident occurred in

between those events on June 28, 2015.

For those reasons stated

with regard to Ellis’s NJLAD claim, the temporal proximity
argument also fails here.
Further, as to the BJ’s and similar jobs constituting an
adverse employment action, while Ellis testified that his
calling out for FMLA leave followed by a BJ’s or less desirable
job assignment was prevalent enough to constitute a “pattern,”
Ellis fails to provide any specifics from which this Court could
gauge whether such a practice could in fact be inferred.

The

Court finds the testimony that he called out on FMLA leave once
and was then given a BJ’s job immediately after insufficient to
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show differential treatment such that the Court can find a
causal link.
vague.

The “attitude” Ellis described was similarly

Being told “who would hire someone like you” does not

sufficiently convey a causal link between Ellis’s FMLA leave and
either being assigned less desirable jobs or his termination.
Summary judgment will be granted on Ellis’s FMLA claim for
failure to establish his prima facie case of retaliation. 4
C.

Unlawful termination
Finally, the Court will also grant summary judgment on

4

As with Ellis’s NJLAD retaliation claim, even if he met his
prima facie case for FMLA retaliation, Ellis has not shown that
the May 22, 2015 assignment to deliver to BJ’s was motivated by
his use of approved FMLA leave, rather than a routine,
legitimate business decision. Ellis called out of work that
day, and only later discovered through a Facebook post by
another driver that Ellis had been assigned the BJ’s route.
Practically speaking, it would have been impossible for
Defendant to retaliate against Ellis by assigning him the BJ’s
route for the very same day he called out. There can be no
claim for retaliation when Ellis did not, and could not,
actually suffer from the alleged retaliation. To the extent
that Ellis’s claims encompass all his assignments to deliver to
BJ’s after he was approved for intermittent FMLA leave, Ellis
has failed to show that those assignments were discriminatory,
since (1) the BJ’s delivery route did not have a dedicated
driver and the delivery assignments were rotated based on driver
proximity and availability, (2) the basis for his FMLA leave did
not restrict him from such deliveries, and (3) he was only
assigned to BJ’s occasionally. “[T]o avoid summary judgment,
the plaintiff’s evidence rebutting the employer’s proffered
legitimate reasons must allow a factfinder reasonably to infer
that each of the employer’s proffered non-discriminatory reasons
was either a post hoc fabrication or otherwise did not actually
motivate the employment action (that is, the proffered reason is
a pretext).” Fuentes, 32 F.3d at 764. Ellis has failed to meet
that burden to avoid summary judgment in Defendant’s favor.
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Plaintiffs’ unlawful termination claim.

“Common law claims for

wrongful termination are pre-empted when a statutory remedy
exists.”

Parikh v. UPS, 491 F. App’x 303, 307 (3d Cir. 2012)

(stating dismissal was proper where a “wrongful termination
claim was based on the same set of facts as [a] discrimination
claim[]”); accord Lawrence v. Nat’l Westminster Bank, 98 F.3d
61, 73 (3d Cir. 1996) (“Because the sources of public policy
[the plaintiff] relies on are conterminous with his statutory
claims, he cannot advance a separate common law public policy
claim.”).
V.
For the reasons expressed above, the Court will grant
summary judgment in favor of Defendant on all of Plaintiffs’
claims.

An appropriate Order will be entered.

Date: September 7, 2018
At Camden, New Jersey

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

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