PARIKH v. UPS et al

Filing 87

OPINION. Signed by Judge Dennis M. Cavanaugh on 10/31/11. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
:
HARRY PARIKH,
:
Hon. Dennis M. Cavanaugh
:
Plaintiff,
:
OPINION
:
v.
:
Civil Action No. 09-1652(DMC)(JAD)
:
UNITED PARCEL SERVICE, INC.,:
EDWARD FAGAN, JULIE FIELDS, and:
ANNETTE JOHNSON,
:
:
Defendants.
:
_________________________________

DENNIS M. CAVANAUGH, U.S.D.J.:
This matter comes before the Court upon Defendants’ Motion for Summary Judgment (ECF No.
71), and Plaintiff’s Cross-Motion for Summary Judgment (ECF No. 84). Pursuant to Rule 78, no oral
argument was heard. After carefully considering the submissions of the parties, and based upon the
following, it is the finding of this Court that Defendants’ Motion is granted, and Plaintiff’s Motion is
denied.
I.

BACKGROUND
This matter involves a dispute over the termination of an employee. Plaintiff is Harry Parikh

(“Plaintiff”), a former employee of United Parcel Service, Inc. (“UPS”). Plaintiff is representing himself
in this action. Defendants are Plaintiff’s former managers, Annette Johnson (“Johnson”), Julie Fields
(“Fields”), and Ed Fagan (“Fagan”) (collectively, the “Individual Defendants”), and UPS (collectively,
“Defendants”). UPS terminated Plaintiff’s employment in November 2008. Defendants contend that

Plaintiff falsified his timecards on multiple occasions in violations of UPS’s Honesty in Employment
Policy. (Defs.’ Br. 1; ECF No. 71-1). Plaintiff, however, argues that the termination was discriminatory,
in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in
Employment Act (the “ADEA”). (Complaint ¶¶ 3-5; ECF No. 1).
Plaintiff began his employment at UPS in 1999, under a temporary assignment at UPS’s
Information Services group in Mawah, New Jersey. (Pl.’s Dep. 36:24-25; 39:6-7; 152:7-9). UPS hired
Plaintiff as a full time junior accountant on October 11, 1999. (Pl.’s Dep. 43:25; 44:1-2). From that date
until September 2006, Plaintiff worked in UPS’s general ledger department. (Pl.’s Dep. 53:4-10). In
May of 2005, and again in June of 2006, Plaintiff went on Absence of Leave for health related problems.
(Pl.’s Br. 1; ECF No. 84-1). In October 2006, UPS transferred Plaintiff to its telecommunications
department, where Plaintiff remained until November 3, 2008, the date of his termination. (Pl.’s Dep.
46:13-48:10; 49:5-7; 53:4-25; 54:1).
Prior to his transfer to the telecommunications department in October 2006, Plaintiff had a
meeting with Fagan, in which Fagan informed Plaintiff of the transfer. (Pl.’s Br. 6). During that meeting,
Plaintiff claims that Fagan commented that he was “getting too old.” (Pl.’s Dep. 97:2-16). Plaintiff also
claims that Fagan told him to “go back where you came from” and tore a copy of a certificate of his
degree. (Pl.’s Dep. 97:6-98:19). Plaintiff did not report this incident until October 2008, during an
investigation of Plaintiff’s alleged violations of UPS’s Honesty in Employment Policy. (Pl.’s Dep. 146:49; 232:3-6). Plaintiff has not alleged that Defendants made any other age related comments after this
incident. (Pl.’s Dep. 153:7-13).
Plaintiff also bases his suit on an encounter with Annette Johnson in October 2008. (Pl.’s Dep.
232:11-233:3). Plaintiff claims that Johnson entered his cubicle when he had his eyes closed, was
-2-

holding his hands and was chanting to himself, and asked “Harry, are you praying.” (Pl.s’ Dep. 84:8-25;
85:8-12; 88:8-24; 90:6-91:6). Plaintiff claims that he asked why Johnson asked this question, and in
response, Johnson asked if Plaintiff was Hindu or Muslim. (Pl.’s Dep. 90:25-91:15). Plaintiff asked
Johnson why she wanted to know, and Johnson left without responding. (Pl.’s Dep. 91:1-9). Plaintiff
has not alleged that Johnson made any other discriminatory or offensive statements after this incident.
(Pl.’s Dep. 93:18-20; 94:24-95:2; 93:21-24).
UPS has an “Honesty in Employment Policy” (the “Policy”), which stresses the importance of
integrity in the workplace, and notes that dishonesty “will result in immediate dismissal and possible
criminal prosecution.” (Pl.’s Dep. 189: 5-12; 191:9-23; Ex. M to cert. of Brigette N. Eagan; ECF No.
71-18). Plaintiff received and signed an acknowledgment of the Policy on October 6, 2008. (Pl.’s Dep.
189:5-12; 191:9-23).
In 2008, Defendants became concerned that certain employees were falsifying timecards. (Fagan
Dep. 129:9-21). Fagan asked two managers, Joe Butkus and Julie Fields, to observe and note the actual
time when employees arrived at work. (Fagan Dep. 129:9-21). Defendants claim that during this
investigation, Plaintiff was observed on October 20 and October 22 of 2008 entering work approximately
forty minutes later than he had reported. (Ex. A to Field’s Cert.; ECF No. 71-29). Defendants also stated
that Plaintiff was consulted with regarding the alleged October 20, 2008 incident prior to October 22,
2008, and warned Plaintiff that falsifying timecards could result in dismissal. (Ex. A to Field’s Cert.)
Plaintiff has denied both the allegations of falsifying timecards, and that any meeting occurred.
Following the alleged incidents, UPS’s human resources department conducted an investigation of
Plaintiff’s timecard reporting, including checking electronically generated reports from when Plaintiff
used his identification badge to swipe into the building. (Hartley Cert.; ECF No. 71-24). Defendants
-3-

eventually concluded that Plaintiff falsified his timecard both on October 20 and 22, 2008, that Plaintiff
was engaged in prior instances of timecard issues, and that the human resources department’s
investigation further established Plaintiff’s misconduct. (Fagan Dep. 78:23-79:12). Defendants claim
that Plaintiff was terminated based on these conclusions. Plaintiff, however, contends that the true reason
for his termination was related to the alleged discriminatory acts of Defendants.
Plaintiff dual-filed charges with the Equal Employment Opportunity Commission (“EEOC”) and
the New Jersey Division of Civil Rights (“DCR”) on December 4, 2008, alleging violations of the ADEA,
Title VII, and the Americans with Disabilities Act. (Ex. J to Eagan Cert.; ECF No. 71-15). Plaintiff filed
his Complaint with this Court on March 8, 2009, alleging statutory claims under the ADEA and Title VII,
and a common law claim for wrongful termination. Defendants filed the instant Motion on March 25,
2011. Defendants seek Summary Judgment on two grounds: first, because Plaintiff’s age discrimination
claim is time barred, and second, because the remaining claims are without merit. (Def.’s Br. 16, 18).
Plaintiff filed his Opposition and Cross-Motion on June 15, 2011. Defendants filed their Reply on July
18, 2011 (ECF No. 86). The matter is now before this Court.
II.

STANDARD OF REVIEW
Summary judgment is granted only if all probative materials of record, viewed with all inferences

in favor of the non-moving party, demonstrate that there is no genuine issue of material fact and that the
movant is entitled to judgment as a matter of law. See FED . R. CIV . P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 330 (1986). The moving party bears the burden of showing that there is no genuine issue
of fact. See id. “The burden has two distinct components: an initial burden of production, which shifts
to the nonmoving party if satisfied by the moving party; and an ultimate burden of persuasion, which
always remains on the moving party.” Id. The non-moving party “may not rest upon the mere allegations
-4-

or denials of his pleading” to satisfy this burden, but must produce sufficient evidence to support a jury
verdict in his favor. See FED . R. CIV . P. 56(e); see also Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “[U]nsupported allegations in [a] memorandum and pleadings are
insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d
Cir. 1990). “In determining whether there are any issues of material fact, the Court must resolve all
doubts as to the existence of a material fact against the moving party and draw all reasonable inferences including issues of credibility - in favor of the nonmoving party.” Newsome v. Admin. Office of the
Courts of the State of N.J., 103 F. Supp.2d 807, 815 (D.N.J. 2000), aff’d, 51 Fed. Appx. 76 (3d Cir. 2002)
(citing Watts v. Univ. of Del., 622 F.2d 47, 50 (D.N.J. 1980)).
III.

DISCUSSION

A. ADEA Filing Deadlines
An individual must exhaust the EEOC’s procedural remedies by filing a charge within 180 days
of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). An exception to this
requirement exists where an individual has “initially instituted” an action with a state or local agency, in
which case the charge must be filed within 300 days. Id. Failure to exhaust statutory remedies precludes
an individual from succeeding on claims of discrimination. See Mitchell v. W. Union, No. 06-949, 2007
U.S. Dist. LEXIS 92621, at *12 n.6 (D.N.J. Dec. 11, 2007). “These preliminary steps are essential parts
of the statutory plan, designed to correct discrimination through administrative conciliation and
persuasion if possible, rather than by formal court action.” Ostapowicz v. Johnson Bronze Co., 541 F.2d
394, 398 (3d Cir. 1976), cert. denied, 429 U.S. 1041 (1977).
Here, Plaintiff filed his charges with the EEOC and DCR on December 4, 2008. The alleged age
discrimination incident occurred in October, 2006, over two years before Plaintiff filed his charges. It
-5-

is well settled that the EEOC filing deadlines act as statutes of limitations, and that if aggrieved parties
do not comply with these filing deadlines, they are barred from commencing civil actions in federal
courts. See, e.g., Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2002) (“[Plaintiff’s] attempt
to obtain relief under federal law from [defendant’s] alleged employment discrimination on the basis of
race and age may proceed only if he filed his administrative charge of discrimination within 300 days of
the unlawful employment actions he challenges.”) This deadline period begins to run when the
discriminatory act complained of occurs, not when the consequences of the act become most painful.
Del. State College v. Ricks, 449 U.S. 250, 258 (1980).
Plaintiff contends, however, that the “continuing violation” theory rescues his case from the
EEOC filing deadlines. (Pl.’s Br. 15; ECF No. 84-1). Plaintiff argues that his termination in 2008, and
replacement with a “substantially young employee,” extended his filing deadline. Under the continuing
violation theory, a plaintiff may pursue claims for discriminatory conduct that accrued prior to the filing
deadline “if he can demonstrate that the act is part of an ongoing practice or pattern of discrimination by
the defendant.” West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). “To establish a
continuing violation, a plaintiff must show that: (1) at least one allegedly discriminatory act occurred
within the filing period and (2) the discrimination is ‘more than the occurrence of isolated or sporadic
acts of intentional discrimination’ and is instead a continuing pattern of discrimination.” Harel v.
Rutgers, 5 F. Supp. 2d 246, 261 (D.N.J. 1996) (citing Rush v. Scott Specialty Gases, Inc., 113 F.3d 476,
481 (3d Cir. 1997)). “[D]iscrete discriminatory acts are not actionable if time barred, even when they
are related to acts alleged in timely filed charges.” AMTRAK v. Morgan, 536 U.S. 101, 112 (2002). In
order to constitute a continuing violation, the acts “must be continuous on an almost daily basis.” Speth
v. Goode, No. 95-0264, 2011 U.S. Dist. LEXIS 5792 at *24-25 (D.N.J. Jan. 20, 2011) (JBS).
-6-

The continuing violation doctrine does not save Plaintiff’s ADEA claim. First, the “substantially
younger” employee that Plaintiff claims replaced him was over forty years old and thus within the same
protected class as Plaintiff, and was hired as a full time employee four months before Plaintiff’s
termination. (Ex. UU to Parikh Cert.; ECF No. 84-58). It is therefore difficult to understand how hiring
of this employee could constitute a discriminatory act. Even if it did, however, that would only be the
second alleged discriminatory act over a two year period. These two acts would constitute only discrete
acts over a lengthy time span, not a continuing violation. Accordingly, Plaintiff’s ADEA claim is time
barred.
B. Plaintiff’s Remaining Claims
1. Title VII and the ADEA
In addition to being time barred, Plaintiff’s ADEA claim, along with his remaining claims, fails
for lack of merit. In order to establish a prima facie case under either Title VII or the ADEA, Plaintiff
must show that: (i) he belonged to a protected class; (ii) he was qualified for his employment and
performing up to his employer’s expectations; (iii) he was laid off or passed over; and (iv) other workers
not belonging to the protected class were retained. McDonnell Douglas v. Green, 411 U.S. 792 (1973);
Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994). Once Plaintiff establishes a prima facie case, the burden
of production (but not the burden of persuasion) shifts to the Defendants to articulate a legitimate
nondiscriminatory reason for the adverse employment decision. See Fuentes, 32 F.3d at 764. If
Defendants adduce such evidence, Plaintiff can survive summary judgment only by pointing to pretextual
evidence in the record “from which a fact finder 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 and determinative cause of the employer’s action.” Keller v. Orix Credit Alliance, Inc.,
-7-

130 F.3d 1101, 1108 (3d Cir.1997) (en banc) (quoting Fuentes v. Perskie, 32 F.3d 759, 763 (3d
Cir.1994)).
To survive summary judgment under the first prong of the pretext test, Plaintiff must discredit
Defendants’ reasons, not by “simply showing that the employer’s decision was wrong or mistaken . . .
[but] rather, the nonmoving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a
reasonable fact finder could rationally find them unworthy of credence.” Keller, 130 F.3d at 1108-09
(quoting Fuentes, 32 F.3d at 765). In order to show pretext, Plaintiff must identify evidence “allowing
the fact finder to infer that discrimination was more likely than not a motivating or determinative cause
of the adverse employment action.” 130 F.3d at 1111 (quoting Fuentes, 32 F.3d at 762). Such evidence
must prove discrimination “based solely on [its] natural probative force[.]” Id.
Defendants have assumed, for purposes of this Motion, that Plaintiff can establish a prima facie
case. (Def.’s Br. 19). Defendants’ arguments, therefore, focus on their own legitimate reasons for
terminating Plaintiff’s employment, and Plaintiff’s failure to establish that those reasons served as a mere
pretext for what were actually discriminatory motivations.
Defendants have satisfied their burden for establishing legitimate reasons for terminating
Plaintiff’s employment. First, Defendants have established the existence of a company policy demanding
high levels of integrity and honesty from UPS employees. (Ex. M to cert. of Brigette N. Eagan).
Defendants have also demonstrated the existence of an investigation into time card reporting violations
by Plaintiff, and that Defendants chose to terminate Plaintiff’s employment based on this investigation.
(Fagan Dep. 78:23-79:12). The existence of this policy, and Defendants’ conclusion that Plaintiff
violated it, is a legitimate reason for terminating Plaintiff’s employment. See, e.g., Vasquez v. J.B. Hunt
-8-

Transp. Inc., No. 07-5615, 2008 U.S. Dist. LEXIS 98779 at *14-15 (D.N.J. Dec. 5, 2008) (MLC) (finding
violation of company policy against insubordination “evidence of a nondiscriminatory reason for
plaintiff's termination to rebut the presumption of discrimination that would be created by a prima facie
case.”)
Plaintiff has not convinced this Court that Defendants’ reasoning was mere pretext. In his
opposition brief, Plaintiff argues that nobody from the human resources department actually saw him
falsifying his time cards, and raises a question of why at least two other employees were found to have
“engaged in similarly activities of incorrect entries on the timecard,” but were not terminated. (Pl.’s Br.
16-17). Plaintiff thus argues that the real reason for his termination was the Defendants’ discriminatory
motives. Plaintiff’s argument fails for two reasons. First, whether Defendants’ decision to terminate
Plaintiff was “wise, correct or prudent” is beyond the scope of this Court’s inquiry. See Chambers v.
Heidelberg USA, Inc., No. 04-583, 2006 U.S. Dist. LEXIS 32334 at *40-41 (D.N.J. May 5, 2006) (RBK);
Fuentes, 32 F.2d at 766. The focus of the inquiry, rather, is on whether the termination decision was
motivated by discriminatory animus. Id. In demonstrating pretext for this animus, plaintiffs must present
more than mere speculation. Connolly v. Mitsui O.S.K. Lines (Am.), Inc., No. 04-5127, 2009 U.S. Dist.
LEXIS 86195 at *11 (D.N.J. Sept. 21, 2009) (JLL) (“Speculation . . . is not sufficient to demonstrate
pretext.”) Defendants have presented actual facts reflecting a reasoned determination to terminate
Plaintiff based on violations of company policy. Plaintiff has presented little more than speculation as
to why that decision was unreasonable. This is insufficient to demonstrate pretext.
Second, Plaintiff’s concerns that two other employees were not fired after they engaged in similar
time card reporting falsifications is of no merit. Defendants have presented evidence that these were new
employees, and have averred that neither of these two employees had been trained or counseled about
-9-

time card reporting before their own incidents. (Defs.’ Reply Br. 16, Ex. G to Lario Cert.; ECF No. 8611). The Court will not second guess Defendants’ legitimate business decisions, absent a stronger
showing of actual animus towards Plaintiff. The alleged incidents complained of are insufficient to raise
Plaintiff’s claims of pretext above a speculative level. Accordingly, Plaintiff’s claims for discrimination
based on his age, national origin, and religion are without merit.
2. Wrongful Termination
Plaintiff has also alleged a cause of action for wrongful termination. (Compl. ¶ 5). This claim
is based on the same set of facts and arguments as Plaintiff’s discrimination claims. (Compl. ¶ 1-5).
Common law claims that do not protect interests “in addition to or aside from those” protected by
statutory remedies are duplicative of the statutory remedies, and thus barred. Lolagne v. Sears, No.
04-3768, 2006 U.S. Dist. LEXIS 3468 at *10-11 (D.N.J. Jan. 30, 2006) (WGB) (“The Court finds that
Plaintiff's wrongful discharge claim would not protect any interest additional to his causes of action under
the [Law Against Discrimination] and ADEA, which both provide an adequate remedy for a
discrimination claim.”) Plaintiff has provide the Court with no reason to believe that a common law
wrongful termination cause of action would protect any right beyond his ADEA and Title VII claims.
Accordingly, this claim is barred as duplicative of Plaintiff’s statutory claims.
3. Claims Against the Individual Defendants
Plaintiff has also pled causes of action under Title VII and the ADEA against the Individual
Defendants in their individual capacities. (Compl. ¶ 3). Neither Title VII nor the ADEA permit
individual liability. See Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir. 1996)
(“[W]e are persuaded that Congress did not intend to hold individual employees liable under Title VII”);
Hill v. Borough of Kutztown, 455 F.3d 225, 246 n.29 (3d Cir. 2006) (“[T]he ADEA does not provide for
-10-

individual liability.”) Accordingly, Plaintiff’s claims against the Individual Defendants are barred.
4. Intentional Infliction of Emotional Distress
The parties have also litigated the question of whether Defendants are liable for intentional
infliction of emotional distress. To establish a claim for intentional infliction of emotional distress, a
plaintiff is required to establish: (1) that the defendants acted intentionally or recklessly, both in doing
the act and in producing emotional distress; (2) that the defendants’ conduct was so outrageous in
character and extreme in degree as to go beyond all bounds of decency; (3) that the defendants’ action
were the proximate cause of the emotional distress; and (4) that the emotional distress suffered was so
severe that no reasonable person could be expected to endure it. Mardini v. Viking Freight, Inc., 92 F.
Supp. 2d 378, 384 (D.N.J. 1999) (citing Buckley v. Trenton Sav. Fund Soc’y, 111 N.J. 355, 366 (1988)).
Here, the second element is wholly lacking. The conduct complained of must be so outrageous
as to “go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.” Id. (citations omitted). “The termination of an employee . . . is the kind of
event that happens every day; such an act is not even a breach of modern-day business etiquette, much
less an uncivilized barbarism. Quite a bit more . . . must accompany a firing if it is to be deemed
‘outrageous.’” Borecki v. Eastern Int’l Mgmt. Corp., 694 F. Supp. 47, 61-62 (D.N.J. 1988) (citing
Fletcher v. Wesley Medical Center, 585 F. Supp. 1260, 1262 (D. Kan. 1984)). Aside from the firing
itself, the only conduct complained of is the alleged statements that Plaintiff might be “getting to old”
and “should go back where he came from,” and the questioning of Plaintiff as to whether he was praying,
and the follow up question of whether Plaintiff was Hindu or Muslim. These statements hardly merit
consideration as discriminatory practices under Title VII and the ADEA. To suggest that this conduct
is so atrocious and intolerable as to go beyond all possible bounds of decency is simply unreasonable.
-11-

Further, Plaintiff has not persuaded this Court that the emotional distress suffered was so severe
that no reasonable person could be expected to endure it. Plaintiff admitted in his deposition that he does
not have any physical or mental symptoms of emotional distress. (Pl.’s Dep. 248-249). Plaintiff’s
arguments that he could not afford to seek medical attention, and that he lost weight, suffers from
Peripheral Artery Disease, and “looks like 80 years old at the age of 59” are of merit. (Pl.’s Br. 22-26).
Plaintiff must actually present evidence of symptoms, such as by sworn testimony or medical records.
Plaintiff has only provided unsupported statements in his Opposition Brief. Accordingly, Defendants are
also entitled to summary judgment on Plaintiff’s claim for intentional infliction of emotional distress.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is granted. Plaintiff’s

Cross-Motion for Summary Judgment is denied. An appropriate Order accompanies this Opinion.

S/ Dennis M. Cavanagh
Dennis M. Cavanaugh, U.S.D.J.
Date:
Orig.:
cc:

October 31, 2011
Clerk
All Counsel of Record
Hon. Joseph A. Dickson, U.S.M.J.
File

-12-