COLEMAN v. DELANEY'S CAPE MAY, LLC.

Filing 32

OPINION. Signed by Judge Joseph H. Rodriguez on 11/17/2019. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JUSTIN COLEMAN,
Plaintiff,
v.
DELANEYS’ CAPE MAY, LLC
Defendants.

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Hon. Joseph H. Rodriguez
Civil No. 17-2581

OPINION

This matter comes before the Court on Motion for Summary Judgment of
Defendant Miquon, Inc. who is the owner and operator of Delaney’s restaurant in Cape
May, New Jersey. Plaintiff Justin Coleman was a seasonal employee at Delaney’s
during part of the Summer in 2015. Coleman worked as both a server and a bartender
during the weeks between July 15, 2015 and September 21, 2015. As is its alleged
custom, Delaney’s terminated 55 employees, including Coleman, at the end of the
Summer season in 2015.
Coleman, who is African-American, claims his termination was motivated by
racial animus and he asserts several claims under the New Jersey Law Against
Discrimination (“NJLAD”), N.J.S.A. 10:5-1, et seq. and Title VII of the United States
Code, 42 U.S.C. § 2000e-3. Specifically, Coleman alleges (1) that he was terminated
solely because of his race, (2) that he was the subject of disparate treatment at
Delaney’s, (3) that he was subjected to a racially offensive and hostile work
environment, and (4) that he was terminated in retaliation for having complained about
racially offensive conduct at the restaurant. Defendant Miquon moves for summary
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judgment as to all of Coleman’s claims.
The Court has considered the written submissions of the parties as well as the
arguments advanced at the hearing on April 16, 2019. For the reasons expressed on the
record that day, as well as those set forth below, Defendant Miquon’s motion is granted.
I.

Background

Miquon hired Coleman as a part-time, seasonal employee at Delaney’s on July 15,
2015. (Slawek Decl. ¶ 9). In terms of seniority, Coleman was one of the last staff
members brought on at Delaney’s for the 2015 summer season; joining the team in midSummer, he was last on the seniority scale. (Id.) Coleman claims that he was hired as a
bartender, but was quickly replaced with non-African American bartenders. SOF at ¶ 35.
Miquon agrees that Coleman was shifted away from the bar and into a server position, a
transition Coleman agreed to make. According to Miquon, the manager at the restaurant
decided to expand the number of bartenders on a single shift from two to three
bartenders when Coleman was hired. (Slawek Decl. ¶ 12.) That staffing model proved
unnecessary because of slow business and a change was made to the number of
bartenders staffed on a single shift. (Id. at ¶ 13.) Under this new staffing model,
Coleman was re-purposed and agreed to work as a server; he often received the most
lucrative assignment station on the floor and his compensation was not impacted by his
change of duties. (Slawek Decl. ¶ 13.)
During Coleman’s eleven-week tenure, he worked part-time, approximately two
to four days per week between Wednesday and Saturday. (Slawek Decl. ¶ 14.) Miquon
states that Coleman had some performance problems, but his work was satisfactory and,
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while he was spoken to about some issues, he was never written up for any missteps. (Id.
at ¶¶ 15- 16.)
According to Coleman, he endured a hostile work environment in which many
Delaney’s employees frequently hurled racial epithets when referring to customers and
to each other. Although Coleman himself was never referred to in a racially insensitive
manner, his presence during the use of racially charged and inappropriate comments
and banter caused him undue stress. Coleman sets forth the following litany of events
in his brief in opposition, which captures the allegations made during his deposition:
-Co-Worker Tracy Venturini commented to Mr. Coleman, “What are you
doing here? They don’t hire black bartenders. The last one didn’t work
out. This is an Irish pub.” SOF at ¶ 25 (Coleman Dep. Tr., Ex. H at 37:2238:14);
-Caucasian co-workers, including Tracy Venturini, Eric Bednar, and
Vadim Bondarenko used the phrases, “don’t make me get Black on you”,
“yo nigga”, and “my nigga” in Mr. Coleman’s presence. SOF at ¶ 26;
-Caucasian co-workers, and Mr. Coleman’s immediate supervisor Ed
Nielsen referred to African Americans as “They” and “You People”. SOF at
¶ 27;
-When rap or hip-hop music was played on the jukebox, Mr. Nielsen
would turn it off or turn it down and scold Mr. Coleman and other staff,
telling them, “Don’t play that type of music. No black music.” SOF at ¶ 28;
-Mr. Nielsen threatened that “if anybody else plays black music, then
they’ll get fired.” SOF at ¶ 28;
-Ms. Venturini, Mr. Bednar, and Mr. Bondarenko used the word “Nigger”
“quite frequently” at the Miquon workplace, in Mr. Coleman’s presence.
SOF at ¶ 29;
-Eric Bednar specifically, “used it often...in all types of contexts. Like
when he was frustrated, when he wasn’t, he would just use it all the time”
including during conversations with Mr. Coleman or while standing right
next to him. SOF at ¶ 29;
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-This use of the word “Nigger” all the time is corroborated by Mr. Bednar
and Mr. Bondarenko’s social media postings. SOF at ¶ 30;
-There is evidence that other employees at Miquon also find it to be a
racially hostile environment like Mr. Coleman alleges. SOF at ¶ 32;
-Defendant admits that an employee complained that there was a racial
slur made at Delaney’s in the Summer of 2015 during Mr. Coleman’s
employment, and that Miquon suspected it may have been Mr. Coleman
who complained. SOF at ¶ 33;
-When asked whether the individual who made the racial slur was
identified, Mr. Nielsen, Miquon’s General Manager, testified that he
“never looked into it. There was no need. ... I didn’t research who, what,
why, or when.” SOF at ¶ 34; and
-Mr. Coleman was subjected to differential treatment in the form of
unwarranted criticism or discipline his Caucasian counterparts were not
subjected to. For example, Mr. Coleman was disciplined for using his cell
phone while at work, while a non-African American employee who was
also using her phone directly next to him was not similarly criticized or
disciplined.
Miquon claims that Delaney’s has had multiple African-American bartenders
during its existence, including Anna Moore, who worked as the head bartender at
Delaney’s before accepting a position as an executive at Resorts International, Serafina
Moore, and Coleman’s cousin Ashley Coleman. (Id. at ¶ 27.) It also claims that
Coleman was never subjected to racial comments by staff, a fact Coleman appears to
agree with, stating in deposition that the racial comments he complains of were never
directed toward him personally, but notes he “was in the area” and heard it. (Coleman
Dep. Tr., Ex. H. at 41:23-44:2.)
In deposition, Coleman had trouble placing almost all of the alleged comments
“his ears heard” into context. (Id. at 47:16-51:5; 44:1-2.) He stated that employees
Tracy, Eric, Vadim, and Tyler made racial comments “all the time.” Id. at 42:17-19. He
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recounts Tracy stating “don’t make me get black on you” meaning that she was
frustrated with a customer and was going to get hostile and angry. Id. 43:1-17. Although
not directed at Coleman, because he heard the comment, he claims he reported it to
“Bob.” Id. at 44:21-25.
Q. To Bob? What’s his last name?
A. I don’t recall his last name.
Q. And was it that specific comment that you were complaining
about?
A. Yes, because at this time it was enough.
Q. And what was his response?
A. He didn’t – he just kind of brushed it off. He didn’t really say
anything at that point.
Q. Did you ever report that statement to Ed Nielsen?
A. Not right away, no.
Q. How long did you wait?
A. I don’t recall, but it wasn’t the same night because Bob was on duty
that night.
Q. Well, how soon into your appointment did you hear that
comment?
A. Which comment?
Q. The comment “don’t make me go black on you.”
A. I don’t recall the timeline.
Q. A week, a month?
A. I don’t recall the timeline.
Id. at 45.
Other incidents include the use of the word n***** “quite frequently.” Id. 47:1215. When asked in deposition about the use of this word, Coleman was unable to recall
dates, context, or circumstances of the utterances. Id. at 48-50.
Q. I'm asking you under what circumstances let's start with Eric. When
did he use that expression and in what context?
A. He used it often. It was in all types of contexts. Like when he was
frustrated, when he wasn't, he would just use it all the time.
Q. Tell me under what circumstances. Would he direct it at you, or was he
directing it at the world in general, like a curse word to the masses or was
it to you?
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A. I wouldn't specify a racial slur as a curse word on the same level of
weighing, so I'm confused about how you're trying to pose the question.
Q. I'm simply asking you when did Eric, under what circumstances did he
A. I don't recall the circumstances. It was said multiple times. That's the
reason why I went to the management and stated. I think -- from my
interpretation, you're minimizing the fact that it was said.
Q. No, I'm not. Let's get away from interpretation. I'm asking you -- you
told me what he said. I'm asking you in what situation did he make the
statement and to whom.
A. I don't recall the stated. It was just too frequently. He said it a lot.
Q. But was he saying it directly to you personally?
A. we're having a conversation, he would say it in us talking, or if I'm like
right next to him, you're in a restaurant, so when you're picking up drinks
or anything else and you say it, you still said it. It doesn't matter.
Q. But try to tell me what context he said it in.
A. I don't recall. I don't think it matters.
Q. Well, it matters to me.
A. Okay. To me a racial slur is a racial slur.
Q. And it could matter to the Court. You can't recall the context in which
he said that?
A. I said that three times at this point. I don't recall.
Q. So did you at any point think when he used the "N" word, that he was
joking with you in any way?
A. No, I didn't know that racial slurs were a joke.
Q. I'm not saying they are. I'm just asking, did you ever interpret them that
way?
A. I never interpret any type of ignorance or racial slurs as a joke. I'm
sorry.
Q. What about Tracy, same kinds of –
A. I reiterate the same thing. I never think racial slurs or ignorance are
ever a joke. They're derogatory.
Q. Let's go to Tracy so you can answer my questions. What words did she
use that you found -A. Same words.
Q. Same words?
A. Yes.
Q. And I'll ask you again. Do you remember the context in which she used
any of those words?
A. I do not.
Q. And would your answer be the same for Vadim? I think you mentioned
Vadim.
A. Yes.
Q. Same answer?
A. Yes.
Q. And, again, you don't recall the context but same answers as the other
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Id.

two?
A. Yes.
Q. Did you hear these comments throughout the time you were at
Delaney's, or was it for a particular period of time?
A. No.
.
Coleman states he verbally complained to Ed and Bob, and eventually Bobbie, but

that he could not recall the timeline, or whether he complained during his first month of
the job. Id. at 51:10-25.
Miquon argues that Coleman was terminated because of a decline in the need for
a robust seasonal workforce. After mid-August 2015, the restaurant undertook a
reduction in seasonal workforce, including bartenders, servers, runners and kitchen
workers. (Slawek Decl. ¶ 28.) According to Michael Slawek, he kept Delaney’s
General Manager Ed Nielsen informed about the need to reduce Delaney’s workforce.
(Id. at ¶ 29.) Slawek gave Neilsen the staffing levels he needed to operate the
restaurant. (Id.) Nielsen, however, was solely responsible for determining when
particular terminations would occur and which seasonal worker would be terminated at
any given time. (Id.) Slawek claims he never had any discussions with Nielsen about
terminating Coleman prior to Coleman’s termination on September 21, 2015. (Id. at ¶
21.)
Although Coleman claims he advanced numerous complaints about various
matters, the only racial work-related complaint Mr. Slawek received occurred in either
late July or early August, 2015. Mr. Slawek claims he was told that an employee heard
another employee use a racial slur at work and management was asked to address the
situation. (Slawek Decl. ¶ 19.) Mr. Slawek claims he did not know the name of the
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complainer or the alleged utterer of the slur. (Id.) At Mr. Slawek’s direction, General
Manager Ed Nielsen called a staff meeting to reinforce Delaney’s policy that racially
offensive language or conduct is not tolerated. (Slawek Decl. ¶ 20; Nielsen Dep. Tr., Ex.
“I,” at 91:11-92:19.) Coleman states that he doesn’t recall any pre-shift meetings
conducted by Ed Nielsen addressing the use of the “N” word by employees. Id. at 52:917.
Mr. Slawek states that he received no further complaints concerning racially
offensive language. (Slawek Decl. ¶ 20.) Coleman disputes this statement and claims
made two attempts to send his complaints to Delaney’s management. First, he claims
he sent two-page letter, certified mail, return receipt requested, from a post office in
Philadelphia, Pennsylvania to “Michael Slawek, 426 Washington Street, Cape May, N.J.
08204” on September 19, 2015, two days before his termination. (Coleman Dep. Tr., Ex.
“H,” at 77:11-81:13.) The address used by Coleman is for The Ugly Mug, which Mr.
Slawek co-owns with his father. (Slawek Decl. ¶ 32.) Coleman does not recall
receiving the signed receipt for the letter and has no proof it was delivered. (Coleman
Dep. Tr., Ex. “H,” at 79:18-80:2.)
There is no evidence in the record to suggest that Mr. Slawek received Coleman’s
letter prior to Coleman’s termination on September 21, 2015. (Id. at 83:19-84:3.) Mr.
Slawek claims he did not receive or read Coleman’s September 19, 2015 letter until after
Coleman was terminated on September 21, 2015. (Slawek Decl. ¶ 34, Ex. “B.”)
Second, Coleman contends he sent an email, the same day he mailed Mr.
Slawek’s letter on September 19, 2015, to Heidi DiLarso complaining about racially
discriminatory and offensive conduct at Delaney’s. (Coleman Dep. Tr., Ex. “H,” at
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87:6-23; Slawek Decl. Ex. “C.”) While Ms. DiLarso handles payroll for Delaney’s, she
has no management authority at Delaney’s. (Slawek Decl. ¶ 36.) Rather, she is the
manager of the Ugly Mug, with an office in that facility. (Id.) According to Ms. DiLarso,
the email was sent to her personal account. (DiLarso Dep. Tr., Ex. “J,” at 17:3-12.) She
testified in deposition that she does not use that email address for business, that it is not
publicly posted, that she does not regularly review her emails, and does not open emails
from unknown email addresses. (Id. at 17:9-16, 19:25-21:8.) Ms. DiLarso denies ever
receiving an email from Coleman dated September 19, 2015. (Id. at 17:22-18:13.)
Mr. Slawek states that he and Ms. DiLarso never discussed Justin Coleman
during Coleman’s employment with Delaney’s. (Slawek Decl. ¶ 37.)
II.

Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) generally provides that the “court shall
grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact” such that the movant is “entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). Such a showing must be supported by “citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory
answers, or other materials.” Fed. R. Civ. P. 56 (c)(1)(A). A “genuine” dispute of
“material” fact exists where a reasonable jury’s review of the evidence could result in “a
verdict for the non-moving party” or where such fact might otherwise affect the
disposition of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts, however, will fail to preclude the entry of
summary judgment. Id.
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In evaluating a motion for summary judgment, the court must view the evidence
in the light most favorable to the non-moving party, and must provide that party the
benefit of all reasonable inferences. Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey v.
Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). Any such inferences “must flow directly from
admissible evidence[,]” because “‘an inference based upon [ ] speculation or conjecture
does not create a material factual dispute sufficient to defeat summary judgment.’”
Halsey, 750 F.3d at 287 (quoting Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12
(3d Cir. 1990) (citing Anderson, 477 U.S. at 255)).
Accordingly, the moving party initially has the burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the moving party has met this burden, the non-moving party must identify,
by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.;
Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Again, to
withstand a properly supported motion for summary judgment, the non-moving party
must identify specific facts and affirmative evidence that contradict those offered by the
moving party. Andersen, 477 U.S. at 256-57. “A nonmoving party may not ‘rest upon mere
allegations, general denials or . . . vague statements . . . .’” Trap Rock Indus., Inc. v. Local
825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga
v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)).
Indeed, the plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the
burden of proof at trial.
Celotex, 477 U.S. at 322. The movant can support the assertion that a fact cannot
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be genuinely disputed by showing that “an adverse party cannot produce
admissible evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P.
56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).
In deciding the merits of a party’s motion for summary judgment, the court’s role
is not to evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). Credibility determinations are the province of the factfinder. Big Apple
BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
III.

Discussion

Analysis of claims made pursuant to the NJLAD generally follows the analysis of
Title VII claims. Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486, 498 (3d Cir. 1999).
Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on
“race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a); Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). In assessing claims under Title VII and
related retaliation claims, courts apply the burden-shifting analysis set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). Under that
framework, a plaintiff must satisfy the initial burden of making a prima facie case of
discrimination.
To establish a prima facie case of discrimination under Title VII, a plaintiff must
show the following: (1) that he is a member of a protected class; (2) that he was qualified
for the position; (3) that he suffered an adverse employment action; and (4) that the
adverse action occurred under circumstances that give rise to an inference of
discrimination. Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 412 (3d Cir. 1999).
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If the employee makes out a prima facie case, the burden of production shifts to
the employer to establish a legitimate, nondiscriminatory reason for its actions. Fuentes
v. Borough of Watchung, 286 F. App’x 781, 784–85 (3d Cir. 2008). If the employer
establishes a legitimate, nondiscriminatory reason for its actions, the burden of
production shifts back to the employee to show that the employer’s proffered reason was
a pretext for actual discrimination. Id. The Third Circuit has held that a plaintiff may
defeat a motion for summary judgment by pointing “to some evidence, direct or
circumstantial, from which a factfinder would 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.” Id.
Title VII also prohibits an employer from retaliating against an employee
“because he has opposed any practice made an unlawful employment practice by [Title
VII] . . . , or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under [Title VII.]” 42 U.S.C. §
2000e–3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff
must establish the following: “(1) she engaged in activity protected by Title VII; (2) the
employer took an adverse employment action against her; and (3) there was a causal
connection between her participation in the protected activity and the adverse
employment action.” Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995).
Next, to establish a hostile work environment claim under the LAD, a plaintiff
“must demonstrate that the defendant’s conduct (1) would not have occurred but for the
employee’s race; and [the conduct] was (2) severe or pervasive enough to make a (3)
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reasonable [person of the same protected class] believe that (4) the conditions of
employment are altered and the working environment is hostile or abusive.” Taylor v.
Metzger, 706 A.2d 685, 688-89 (N.J. 1998) (quotations omitted). The New Jersey
Supreme Court requires a cumulative analysis of the incidents comprising an alleged
hostile work environment. See Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445, 455 (N.J.
1993). “[A]n employer will be held vicariously liable in situations where it delegates
authority to control a work environment to a supervisor, and the supervisor abuses that
authority, or where sexual harassment is foreseeable and the employer is negligent in
having in place or enforcing anti-harassment policies, or where the employer intended
for or gave apparent authorization to the harassing conduct.” Smith v. Exxon-Mobil
Corp., 374 F. Supp. 2d 406, 421 (D.N.J. 2005)
IV.

Analysis

A. Claim of Discrimination
The Court finds that Coleman cannot establish a prima facie case of racial
discrimination against Miquon. Coleman can satisfy all of the criteria of a prima facie
case of discrimination except the fourth factor—that the termination gives rise to an
inference of unlawful discrimination. There is no evidence in the record to suggest that
Coleman’s separation from Delaney’s was motivated by racial animus.
Even if Coleman could establish a prima facie case of discrimination, the record
evidence supports Miquon’s proffered reason for his separation as part of the seasonal
pare down of the staff, which occurs at the conclusion of every summer and impacts
employees of every racial background because it is based primarily upon seniority.
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Miquon states that Coleman and 54 other employees were terminated at the end of the
2015 season. As an establishment at a shore town, the end of the summer results in a
downturn in business. For this reason, over the course of many seasons, Delaney’s
significantly reduces its staff in a manner that reflects its needs as the Fall and Winter
months approach and business declines. The reduction at the end of 2015 was,
according to Miquon, undertaken to achieve this objective and a total of 55 seasonal
employees were terminated; 43 were non-minorities. (Slawek Decl. ¶ 28.)
Coleman has not pointed to evidence in the record to suggest that Miquon’s reasons
for his termination were a pre-text for racial discrimination. Coleman’s termination
was part of the yearly, regular seasonal reduction in staff and his inclusion in the
reduction was motivated by his lack of seniority and his inflexible schedule. Coleman, a
resident of Philadelphia, told Ms. Hornbeck prior to his hiring that he was unavailable
to work Sundays (church commitments), Tuesday nights (choir rehearsals) and most
Wednesday nights (bible study). (Coleman Dep. Tr., Ex. “H,” at 28:5-17.) Coleman
likewise told Michael Slawek at or about the time he was hired that he could only work
on a part-time basis, preferably on Fridays and Saturdays. (Slawek Decl. ¶ 10.)
Coleman also told Mr. Slawek on multiple occasions that he had a full-time job in
Philadelphia, that he had commitments to his church on Sundays and that he was
involved in operating an online music business. (Id.)
The record evidence supports that the decision to terminate Justin Coleman and the
54 other employees terminated in August and September was necessitated by the
seasonal decline in the restaurant’s business. (Slawek Decl. ¶ 30; Nielsen Dep. Tr., Ex.
I at 26:21-27:16.) When seasonal business declines and layoffs are required,
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management at Delaney’s considers several factors in determining which seasonal
employee should be laid-off and in what order. These factors include the length of time
the employee has worked at Delaney’s, the employee’s availability to work, and the
employee’s overall job performance. (Nielsen Dep. Tr., Ex. I at 89:6-90:2.) Coleman
lacked seniority, being among the most recent hires and had limited availability to work.
In addition, Coleman has not put forth evidence to challenge the proffered reason for
his termination as a pretext for racial discrimination. Coleman has not “submit[ed]
evidence 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.”
Keller v. Orix Credit Alliance, 130 F.3d 1101, 1108 (3d Cir. 1997) (internal citation and
quotation marks omitted). Coleman’s lack of seniority as one of the shortest-tenured
employees, the decline of business at the end of the season, and Coleman’s limited
availability are legitimate, non-discriminatory reasons for his inclusion in the 54 staff
members impacted by the reduction in force. (Nielsen Dep. 71:17-74:23)
While Coleman highlights instances of the use of racially offensive and insensitive
language by members of the restaurant staff, Coleman has produced no evidence to
suggest that his race, as an African-American, played any part in his inclusion in the
reduction of the work force. See McCray v. DPC Industries, Inc., 942 F. Supp. 288, 293
(E.D. Tex. 1996) (“Racial comments that are sporadic or part of casual conversation do
not violate Title VII.”) To the contrary, the record reflects a diverse population included
in both the reduction of force and in the population of workers chosen to remain during
the “off-season.” Delaney’s avers it has the highest number and percentage of African15

American and other minority employees of any restaurant in Cape May, including
current Delaney’s employee, Nina Coleman, who is Justin Coleman’s mother, and
Coleman’s cousins Marquees Coleman, who was a busboy at Delaney’s in 2015 and
Ashley Coleman, a server and bartender at Delaney’s since early 2015. (Id. at ¶¶ 24-25.)
Coleman has not challenged this evidence or demonstrated that he was included in the
reduction in staff and/or treated disparately because of his status as an AfricanAmerican. He has failed to identify any evidence that other employees not in his
protected class were treated more favorably.
As a result, there are no genuine issues of fact related to whether Coleman received
disparate treatment because of his race and summary judgment is granted as to this
claim. Harris v. Holder, 2016 WL 3388297, at *3 (D.N.J. June 13, 2016) (Granting
summary judgment where there was no evidence that “similarly situated persons who
are not African-American were treated more favorably.”)
B. Retaliation
There are no genuine issues of material facts related to whether Coleman’s inclusion
in the reduction of force was due in part to his complaints about the racially charged
environment he claims existed at Delaney’s. First, Coleman never put his complaints in
writing during his time as an employee and, prior to his termination, he never
complained to Michael Slawek about racially offensive conduct. (Id. at 62:17-63:2;
Slawek Decl. ¶ 17; Coleman Dep. Tr., Ex. H. at 53:14-16.) Slawek testified that he did not
know the name of the lone racial complainant, which prompted the staff meeting by Ed
Nielsen in mid-summer. Although Coleman spoke to manager Bobbi Hornbeck on
multiple occasions, his statements to Hornbeck were limited to complaints regarding
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the customers he served. (Hornbeck Dep. Tr., Ex. G at 25:18-26:9.)
Coleman has not pointed to any evidence to reflect that the Delaneys alleged
frustration with Coleman’s complaints played any part in the decision to terminate him.
When relying on temporal proximity, a plaintiff will also have to demonstrate that the
decision maker accused of taking the adverse action “had knowledge of the protected
activity.” Moore, 461 F.3d at 351.
Even if Coleman could recall to whom and when he made his verbal complaints,
there is no evidence to support a causal connection between Coleman’s participation in
this protected activity and the adverse employment action. Nelson, 51 F.3d at 386. There
is no proof that the certified letter Coleman sent to The Ugly Mug (two days before his
termination) reached Slawek prior to Coleman’s termination; Coleman does not have
the return receipt and the evidence reflects that Slawek did not have the letter at that
time. Likewise, there is no evidence that Heidi DiLarso received and then acted upon
the email Coleman sent to her private account.
Giving Coleman the benefit of every inference, he has failed to show that Delaney’s
would not have terminated his seasonal employment “but for” the fact that he
complained. Young v. City of Philadelphia Police Dep’t, 651 Fed. App’x 90, 96 (3d Cir.
2016). Coleman’s status as the least senior member of the seasonal staff coupled with his
limited schedule gives his inclusion in the reduction of force merit. Therefore, even if
Coleman had evidence that he frequently complained “courts routinely have . . . granted
summary judgment in favor of an employer where the plaintiff’s termination would have
occurred regardless of any alleged retaliatory motive.” Costa v. Pa. Dep’t of Revenue,
Civ. No. 12-854, 2014 WL 1235879 at *13, (W.D. Pa. Mar. 25, 2014). For these reasons,
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Coleman’s retaliation claim fails and summary judgment will be granted.
C. Hostile Work Environment
Miquon argues that Coleman’s claim of hostile work environment fails because
Title VII is not a general workplace civility code. Miquon argues that Coleman cannot
demonstrate that any comments about Coleman’s race were ever made to Coleman. In
addition, even if some comments made by employees were said, Coleman is unable to
recall the circumstances and, therefore, cannot prove that the conduct was sufficiently
severe or pervasive to create a hostile work environment. The Court agrees.
Title VII is not violated by “[m]ere utterance of an ... epithet which engenders
offensive feelings in an employee” or by mere “discourtesy or rudeness,” unless so severe
or pervasive as to constitute an objective change in the conditions of employment. See
Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S. Ct. 2275, 141 L.Ed.2d 662
(1998) (citations omitted). In determining the existence of a hostile environment,
courts look at the totality of all the circumstances including the frequency of the
conduct, the severity of the conduct, whether it is physically threatening or humiliating
or merely an offensive utterance, and whether it unreasonably interferes with an
employee's work performance. Faragher, 118 S. Ct. at 2283.
The employee's perception of a hostile environment must be subjectively felt and
objectively reasonable. Id. “For racist comments, slurs and jokes to constitute a hostile
work environment, there must be more than a few isolated incidents of racial enmity,
meaning that instead of sporadic racist slurs, there must be a steady barrage of
opprobrious racial comments.” Schwapp v. Town of Avon, 118 F.3d 106, 110–11(2d
Cir.1997); Al-Salem v. Bucks Cty. Water & Sewer Auth., No. CIV. A. 97-6843, 1999 WL
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167729, at *5 (E.D. Pa. Mar. 25, 1999).
To establish a claim under Title VII based on an intimidating or offensive work
environment, a plaintiff must show: “(1) that he or she suffered intentional
discrimination because 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 of the same race in that position; and (5) the
existence of respondeat superior liability.” See Aman v. Cort Furniture Rental Corp., 85
F.3d 1074, 1081 (3d Cir. 1996). The frequency of the conduct identified by Coleman is
insufficient to establish a hostile working environment. Lawrence v. F.C. Kerbeck &
Sons, 134 F. App'x 570, 571–72 (3d Cir. 2005). The conduct Coleman identifies is
infrequent and there is no evidence put forth by Coleman to establish that the conduct
interfered with his work performance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23,
114 S. Ct. 367, 126 L.Ed.2d 295 (1993).
Coleman has not identified language that was intentionally used against him
because of his race that he faced discrimination so regularly and pervasive that it
detrimentally affected him. He was unable to place the utterances into a context or give
a timeframe, and, while he does aver that offense language was used, his descriptions
depict sporadic use of racist slurs by non-managerial employees. He was unable to recall
when he made verbal complaints. Given the opportunity to expand on the manner in
which the racist language was used, Coleman stated that it was used and did not recall
or detail any facts to show that the racist language was weaponized.
In addition, even if the employee language could be construed as creating a
hostile working environment, there is no basis for vicarious liability. See Caver v. City of
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Trenton, 420 F.3d 243 (3d Cir. 2005). “In evaluating a hostile work environment claim
under ... Title VII ... we are mindful that offhanded comments, and isolated incidents
(unless extremely serious) are not sufficient to sustain a hostile work environment
claim. Rather, the conduct must be extreme to amount to a change in the terms and
conditions of employment.” Id. at 262-3 (internal citations omitted). In Huston v.
Procter & Gamble Paper Products Corp., 568 F.3d 100, 104 (3d Cir. 2009), the Third
Circuit held that “employer liability for co-worker harassment exists only if the
employer failed to provide a reasonable avenue for complaint or, alternatively, if the
employer knew or should have known of the harassment and failed to take prompt and
appropriate remedial action.” Id. (citing Weston v. Pennsylvania, 251 F.3d 420, 427 (3d
Cir. 2001, abrogated in part on other grounds by, Burlington N. & Santa Fe Railway Co.
v. White, 548 U.S. 53, 67 (2006)). The test is whether “an employer knew or should
have known about workplace [ ] harassment if management-level employees had actual
or constructive knowledge about the existence of a [ ] hostile work environment.” Id.
(internal quotation marks and emphasis omitted). In addition, courts measure whether
“[a]n employer’s remedial action is adequate if it is reasonably calculated to prevent
further harassment.” Id. at 110.
The record reflects that when Mr. Slawek became aware of an anonymous
complaint in mid-summer, he ordered a staff meeting which was ultimately held by Ed
Nielsen. Neither Nielsen or Slawek received any additional complaints and Coleman
agrees that he did not send any written complaints until he mailed and emailed the
letters on the weekend preceding his termination. Thus, there is no genuine issue as to
any material fact regarding whether Miquon knew of the alleged harassment and failed
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to take prompt and adequate remedial action. There are no written complaints made by
Coleman, with the exception of the email and letters he allegedly sent days prior to his
termination, or any evidence that other employees had ever made a complaint of
discrimination or harassment. Therefore, even if the racial slurs uttered by Coleman’s
co-workers are sufficient to establish a hostile work environment, there is no evidence in
the record to support a claim of vicarious liability against Miquon.
V.

Conclusion

For the reasons set forth above, as well as those expressed on the record,
summary judgment is granted in favor of Miquon.
An appropriate Order shall issue.
Dated: December 17, 2019

s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE

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