JOHN DOE v. SIZEWISE RENTALS, LLC et al
Filing
129
OPINION. Signed by Judge Claire C. Cecchi on 4/10/2012. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN DOE,
Plaintiff,
Civil Action No, 09-3409
v.
OPINION
SIZEWISE RENTALS, LLC, et a!.,
Defendants.
CECCHI, District Judge.
I.
INTRODUCTION
This matter comes before the Court by Motion for Summary Judgment brought by
Defendants Sizewise Rentals, LLC (“Sizewise”) and Joyce Skiar (“Sklar”) (collectively
“Defendants”) against Plaintiff John Doe (“Plaintiff’ or “Doe”) pursuant to Federal Rule of Civil
Procedure 56. Defendants have also moved to vacate this Court’s Order permitting Doe and
John Doe-i (“Doe-i”) (collectively, “Plaintiffs”) to proceed using pseudonyms. Plaintiff has
cross-moved to reinstate Doe-i ‘s claims of racial discrimination’ and to strike Defendants’
documents that disclosed Plaintiffs’ real names. The Court has considered the submissions made
in support of and in opposition to the instant motion. No oral argument was heard, Fed. R. Civ.
2
‘Pro se plaintiff John Doe attempts to argue on behalf of pro se plaintiff John Doe-i, who was
previously dismissed from this action. In an Order dated November 22, 2010, this Court
dismissed all claims made by Doe-i and dismissed all claims by Doe against all defendants
except a claim for retaliatory discharge under 42 U.S.C. § 1981 against Sizewise and Sklar. As
discussed, supra Section IV.C, a pro se Plaintiff has no authority to represent another person.
The
2 Court considers any new arguments not presented by the parties to be waived. See Brenner
v Local 514 United Bhd of Carpenters & Joiners, 927 F 2d 1283, 1298 (3d Cir 1991) (“It is
well established that failure to raise an issue in the district court constitutes a waiver of the
argument.”).
P. 78. Based on the reasons that follow, Defendants’ Motion for Summary Judgment is granted
and the Court will vacate the Order permitting Plaintiffs to proceed using pseudonyms.
Plaintiff’s motion to reinstate Doe-I’s claims and to strike documents that reveal Plaintiffs’ real
names is denied.
II.
BACKGROUND AND PROCEDURAL HISTORY
3
Sizewise is a company that delivers medical equipment to be used by overweight patients
in hospitals and nursing homes. (Defendants’ Statement of Undisputed Material Facts (“SOF”)
1; Second Amended Complaint (“SAC”)
¶ 2.)
¶
Doe is an “Egyptian Muslim” who worked at the
Sizewise facility in Hackensack, New Jersey from June 16, 2008 until he was terminated in July
2009.
(SOF ¶J1, 2; SAC
¶
12.)
As an Account Associate for Sizewise, Doe inspected
equipment, drove and delivered the equipment to customers, and demonstrated to the customers
Defendants submitted a statement of undisputed material facts (“SOF”) along with their motion.
Plaintiff has submitted a statement of “disputed” material facts, wherein he lists factual
allegations, but does not cite to any supporting documents or evidence. Plaintiff claims that
“[D]efendants have deliberately skipped pages 9, 14-16, 22, 34, 26, 27, 31, 32, 40, 42 from
Plaintiff’s Deposition which comprise a continuation of the disputed facts between the two
parties.” (P1. Opp. at 8.) However, Plaintiff did not submit these pages of the deposition for the
Court’s review.
Doe’s burden as the non-moving party in a motion for summary judgment requires “more than
just bare assertions, conclusory allegations or suspicions.” Podobnik v. U .S. Postal Serv 409
F.3d 584, 594 (3d Cir, 2005), “The Supreme Court has unequivocally stated that the object of
Rule 56(e) ‘is not to replace conclusory allegations of the complaint or answer with conclusory
allegations of an affidavit.” Khrakovskiy v. Denise, Civ. A. No. 06—1033, 2009 U.S. Dist.
LEXIS 96650, at *26 (D.N.J. Oct. 19, 2009) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S.
871, 888 (1990)).
The Third Amended Complaint (“TAC”) is the operative pleading in this matter, however, in an
effort to liberally construe the pro se Plaintiff’s allegations, the Court will review the allegations
contained in Plaintiff’s Second and Third Amended Complaints. ($eç Letter Opinion of Judge
Linares, Jan. 14, 2011, ECF Docket No. 100, at 2.)
7
how the equipment worked, (SOF
¶ 2;
SAC
¶
12.) Amy Sztejman (“Sztejman”) was a District
Sales Representative at Sizewise during the relevant time period. (Hill Cert., Ex. C.)
Skiar was a Regional Manager for Sizewise at the Hackensack facility during the relevant
time. (Sklar Cert.
¶
1; SOF ¶ 4.) Sklar interviewed Doe for his position and recommended that
Sizewise hire him. (Skiar Cert.
¶ 1;
SOF
¶ 4.)
Doe began working at Sizewise in June 2008 and
on October 22, 2008, Doe signed a form acknowledging his receipt of the employee handbook
and policy. (Hill Cert., Ex. J.) According to Doe, soon after he began working at Sizewise,
Skiar spoke to him about assuming additional responsibilities and potentially taking on a
management position. (SOF
(“Pl.’s SOF”)
¶ 4)
¶J
10-15; see also Plaintiffs Statement of Disputed Material Facts
However, he told Skiar that he needed time to think about it because he had
other commitments and needed more time to learn the job. (SOF ¶ 10-15.) In August 2008, Doe
received a written warning as a result of an altercation he had with two other employees. (Hill
Cert., Ex. C.) According to Doe, both of these other employees were terminated following his
complaints about them to human resources and to Skiar. (SOF ¶ 6-7; SAC ¶ 15, 17.)
In November 2008, Doe-i, who is a “Muslim from Turkey,” began working at Sizewise
after Doe recommended him for a job. (SOF
¶
17; SAC
¶
12.) Doe was assigned the task of
training Doe-i, but Doe claimed that he did not have time to sufficiently train Doe-i. (SOF
¶
20.) Early in Doe-i ‘s employment, Doe told Sklar that Doe-i was not performing as well as he
had expected. According to Doe, Doe-i was “frustrated” with having to work the night shift
because it “was a lot of work” and he did not want to work at night. (SOF
¶ 21.)
In the first six
months that Doe-i worked at Sizewise, he was involved in four accidents while driving a
Sizewise vehicle. (SOF
¶
22; Hill Cert., Ex. F.) According to Sizewise’s termination report,
Doe-i was terminated on April 29, 2009 as a result of these accidents. (SOF ¶ 20; Hill Cert., Ex.
3
F.) The decision to terminate Doe-i ‘s employment was made at the corporate level, not by
Sklar, Meyer, or Sztejrnan. (SOF
¶ 24;
Guthrie Cert.
¶ 2.)
Cord Meyer (“Meyer”) was hired as the Regional Operations Manager for Sizewise in
February 2009. (Meyer Cert.
¶J
1-2.) In June 2009, Meyer requested that Doe complete a self-
evaluation form in preparation for his performance review, When Doe failed to return the form,
Meyer followed up with him on two occasions, but Doe told him that he was going to speak with
Skiar before returning the form. (SOF ¶ 25; Meyer Cert. ¶2; Hill Cert., Ex. G.)
On approximately June 21, 2009, Doe called Skiar and accused her of terminating Doe-i
because he is Muslim and Sklar is Jewish. (SOF
¶ 27.)
During that conversation, he “probably”
told her that he thought Meyer was Jewish as well. (SOF
lawsuit if Skiar did not resign from Sizewise. (SOF
¶ 28.)
¶ 29.)
Doe also threatened to bring a
After receiving the call from Doe,
Skiar e-mailed her manager, Tim McCarty, and told him that Doe had called her on Friday June
19, 2009 and June 21, 2009 and alleged that he was discriminated against “because he is a
Muslim.” (SOF
¶
31; Hill Cert., Ex. H.)
On June 27, 2009, Doe sent an e-mail to Sklar,
accusing her of using “a fabricated story” to fire Doe-i. (SOF ¶ 32; Hill Cert., Ex. I.) He stated
in the e-mail that Skiar and Sztejman “are Jewish.
[Doe-li is Muslim.
You have a lot to
explain.” (SOF ¶ 32; Hill Cert., Ex. I.)
In response to Doe’s accusations of discrimination, Larry Askew, General Counsel for
Sizewise, conducted an investigation of Doe’s claims. (SOF ¶j 36-3 7; Askew Cert.
¶J
1-2.)
Askew met with Doe on June 29, 2009, and Doe told Askew that Sztejman wanted to fire Doe-i
because he is Muslim.
(SOF
¶
37; Askew Cert., Ex. A.) He further told Askew that Sklar
teamed up with Sztejman to fire Doe-i because they are Jewish. (SOF
4
¶ 37;
Askew Cert., Ex.
nce or
A.) Doe also told Askew that he hated “taking direction from someone with less experie
less education than himself.” (SOF ¶ 38.)
On July 2, 2009, a Sizewise customer, Arbor Glen Nursing Home (“Arbor Glen”) faxed a
and
letter “to inform [Sizewise] of a situation that took place between a Sizewise delivery man
one of [the customer’s] employees” on July 1, 2009. (SOF
¶ 41;
Guthrie Cert., Ex. A.) The
and
letter identified Doe directly and stated that he looked the customer’s employee up and down
stared at her breasts. (SOF
¶ 42;
Guthrie Cert., Ex. A.)
The letter alleged that Doe asked the
ted that
employee to “stand up and turn around so he could look at her” and the customer reques
Doe not be placed on their delivery route in the future. (SOF
¶ 42;
Guthrie Cert., Ex. A.) At his
er and he
deposition, Doe testified that he did not remember delivering equipment to this custom
denies that he committed the misconduct about which the customer complained. (SOF
¶ 44.)
service ticket indicates that Doe made a delivery to the customer on July 1, 2009. (SOF
Hill Cert., Ex. K.)
Sizewise terminated Doe’s employment on July 7, 2009.
(SOF
A
¶ 44;
¶
45.)
was
Sizewise asserts the termination was a result of Doe’s alleged misconduct, which
sion
complained of by the customer. (SOF 45; Hill Cert., Ex. L.) Doe argues that Skiar’s “obses
the
with the destruction of non-Jews” was a “motivating factor” in his termination and
termination of Doe-i. (SOF ¶ 46.)
Plaintiff filed this cause of action in July 2009, asserting various claims of employment
discrimination under Title VII, 42 U.S.C.
§
2000e-i et seq., and 42 U.S.C.
1986 against Sizewise, Sklar, Sztejman, and Meyer.
§
1981, 1985, and
On August 2, 2010, this Court granted
t Entry
Plaintiffs’ request to proceed anonymously in this case. (Order, Aug. 3, 2010, ECF Docke
was
No, 65.) Defendants filed a motion to dismiss the Second Amended Complaint, which
granted by this Court on September 7, 2010. (Letter Opinion, Sept. 7, 2010, ECF Docket Entry
No. 78.)
Plaintiff filed a Third Amended Complaint on September 13, 2010. On November 22,
2010, Defendants moved to dismiss the Third Amended Complaint and this Court granted that
motion in part and denied it in part. The Court found that read together, the Second and Third
Amended Complaints allege that Sizewise terminated Doe’s employment afier he complained to
Skiar “that John Doe-i ‘s termination had been fueled by racial animus.” (Letter Opinion, Nov.
22, 2011, ECF Docket Entry No. 91, at 9.) Plaintiff then filed a motion for reconsideration,
which was denied on January 14, 2011. This Court’s letter opinion stated that the lawsuit was to
“proceed solely as to Plaintiff John Doe’s section 1981 claim of retaliation as against Defendants
Sizewise Rentals, LLC and Joyce Sklar.” (Letter Opinion, Jan. 14, 2011, ECF Docket No. 100,
at 8.) Sizewise and Skiar have filed the instant motion for Summary Judgment to vacate the
order permitting Plaintiffs to use a pseudonym.
III.
LEGAL STANDARD
Summary judgment is appropriate if the “depositions, documents, electronically stored
information, affidavits or declarations, stipulations
.
.
.
admissions, interrogatory answers, or
other materials” demonstrate that there is no genuine issue as to any material fact, and,
construing all facts and inferences in a light most favorable to the non-moving party, “the
moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. p. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Pollock v. Am. Tel. & Tel, Long Lines, 794
F.2d 860, 864 (3d Cir. 1986).
The moving party has the initial burden of proving the absence of a genuine issue of
material fact. See Celotex, 477 U.S. at 323. Once the moving party meets this burden, the non
6
to show that, to the contrary, there
moving party has the burden of identifying specific facts
Elec, Indus. Co. v. Zenith Radio
exists a genuine issue of material fact for trial. $e Matsushita
if a dispute about that fact “might
Corp., 475 U.S. 574, 586—87 (1986). A fact is “material”
law,” and a “genuine” issue exists as
affect the outcome of the suit under governing [substantive]
jury could return a verdict for the
to that fact “if the evidence is such that a reasonable
242, 248 (1986). The Court’s
nonmoving party.” Anderson v. Liberty Lobby. Inc., 477 U.S.
not to weigh the evidence and
role is to determine whether there is a genuine issue for trial,
decide the truth of the matter. Id. at 249.
IV.
DISCUSSION
this lawsuit proceeds
Pursuant to this Court’s letter opinion dated January 14, 2011,
retaliation as against Defendants
“solely as to Plaintiff John Doe’s section 1981 claim of
14, 2011, at 8.) Defendants have
Sizewise Rentals, LLC and Joyce Sklar.” (Letter Opinion, Jan.
permitting Plaintiffs to proceed
moved for summary judgment and to vacate this Court’s Order
s claims of racial discrimination
using pseudonyms. Plaintiff has moved to reinstate John Doe-i’
for summary judgment that
and to strike Defendants’ documents submitted with their motion
address Defendants’ motion to
disclosed Doe’s and Doe’ 1 ‘s real names. The Court will first
vacate the Order permitting Plaintiffs to use pseudonyms.
ffs to Use Pseudonyms
A. Defendants’ Motion to Vacate Order Permitting Plainti
See Doe v. C.A.R.S.
Courts allow parties to proceed anonymously in exceptional cases.
order to proceed with a lawsuit
Protection Plus, Inc.. 527 F.3d 358, 371 n. 2 (3d Cir. 2008). In
harm, and (2) that the fear of
using a pseudonym, a plaintiff must show “both (1) a fear of severe
(3d Cir. 2011) (quoting Doe v.
severe harm is reasonable.” Doe v. Megless, 654 F.3d 404, 408
1043 (9th Cir. 2010)). The risk
Kamehameha Sch./Bernice Pauahi Bishop Estate, 596 F.3d 1036,
7
that the plaintiff may suffer embarrassment or economic harm is not enough to require a
pseudonym. Id. Courts have allowed pseudonyms in cases involving “abortion, birth control,
transexuality, mental illness, welfare rights of illegitimate children, AIDS, and homosexuality.”
Doe v, Borough of Morrisville, 130 F,R,D, 612, 614 (E.D.Pa. 1990).
In this case, Doe testified at his deposition that he used a pseudonym when filing his
complaint because he thought it was necessary if he were to proceed with a class action, not
because he feared having his identity revealed. (SOF
4
¶ 47;
Hill Cert., Ex. A, at 35-36.) When
asked at his deposition if he was ever “concerned about having [his) identity concealed so that no
one knows that it is [him] that has filed the lawsuit,” Doe stated, “No. to be honest with you, no.
I don’t know exactly, but the answer is no.” (Hill Cert., Ex. A, at 35-36.) Although Plaintiff
asserts in his opposition that he was “terminated with malicious intent” and risked severe harm,
his deposition testimony and submissions do not support the use of a pseudonym. (P1.
Opp. 4.)
The Court finds that Plaintiff’s contentions do not rise to the level of “a fear of severe harm.”
Therefore, Defendants’ motion to vacate the Court’s Order permitting Plaintiffs to proceed
anonymously, dated August 2, 2010, is granted.
B. Defendants’ Motion for Summary Judgment
1. Section 1981 Retaliation Claim
Defendants argue that this Court should dismiss Doe’s Section 1981 retaliation claim
because he is “attempting to state a claim based on alleged religious discrimination against
Muslims.” when the statute “bars racial, not religious, discrimination.” Abulkhar v. Liberty Mut.
Ins. Co., 2009 WL 5206285 (D.N.J. 2009) (Def.’s Mem, in Supp. Mot, Dismiss 15,).
Court issued the Order permitting Doe and Doe-i to use pseudonyms on August 2, 2010,
prior to Doe’s deposition, which took place on July 6, 2011.
8
42 U.S.C. §1981 provides:
All persons within the jurisdiction of the United States shall have the same
be
right in every State and Territory to make and enforce contracts, to sue,
parties, give evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.
42. U.S.C.
§ 1981.
To establish a prima facie case for retaliation under
§ 1981, a plaintiff must show by a
suffered an
preponderance of the evidence “(1) that he engaged in a protected activity; (2) that he
n the protected
adverse employment action; and (3) that there was a causal connection betwee
e, Inc., 197
activity and the adverse employment action.” Hutchins v. United Parcel Servic
263 (3d Cir.
Fed,Appx. 152, 156 (3d Cir. 2006) (quoting Cardenas v. Massey, 269 F.3d 251,
ate, non
2001)). The employer can rebut the employee’s prima facie case by asserting a legitim
497, 501
discriminatory reason for the employment action. Quiroga v. Hasbro, Inc., 934 F.2d
derance of the
(3d Cir. 1991). The burden then shifts back to the plaintiff to show by a prepon
ination. See
evidence that the reasons offered by the employer are merely a pretext for discrim
Waddell v. Small Tube Prod. Inc., 799 F.2d 69, 73 (3d Cir. 1986).
In order to state a claim for retaliation under
to discrimination prohibited by
§ 1981, the “protected activity” must relate
§ 1981, not just under any statute.
See CBOCS West, Inc. v,
F.3d 684, 693
pjes, 553 U.S. 442, 451-52 (2008); Hawkins v. 1115 Legal Serv, Care, 163
(2d Cir. 1998) (“[Tjo be actionable under
§ 1981, the retaliation must have been in response to
the claimant’s assertion of rights that were protected by
§ 1981.”). Section 1981 prohibits
Francis
discrimination based only on race, alienage, ancestry, or ethnic characteristics. See Saint
protect from
Coll. v. A1-Khazraji, 481 U.S. 604, 613 (1987) (“Congress intended to
9
onal discrimination
discrimination identifiable classes of persons who are subjected to intenti
solely because of their ancestry or ethnic characteristics.”).
Section 1981 does not prohibit
v. Bethlehem Steel Corp.,
discrimination on the basis of religion, sex, or national origin. Vuksta
540 F. Supp. 1276, 1281-82 (E.D. Pa. 1982) (holding that
§
1981 does not prohibit
v. Allegheny School,
discrimination on the basis of religion, sex, or national origin); Abdallah
*5 (ED. Pa. 2011) (dismissing Section 1981 claim because it
No. 10-5054, 2011 WL 344079, at
on that his Islamic
was based on religious, not ethnic discrimination despite plaintiffs asserti
faith was part of his ethnic characteristics and ancestry).
Here, Doe has failed to allege that he engaged in an activity protected by
§
1981. Doe
gave preferential
claims that Defendants engaged in racial discrimination and that Skiar
treatment to white employees. (Plaintiffs “Statement of Disputed Facts”
¶
1; TAC
¶J
E-J.)
se, asserting that he was
However, the undisputed facts show that Doe complained to Sizewi
devoid of any factual
discriminated against because he is Muslim. Furthermore, the record is
characteristics or
allegations establishing discrimination based on Plaintiffs race, ethnic
of “terminating John
ancestry. During the June 21, 2009 phone call with Skiar, Doe accused her
Doe-i because he’s Muslim and you are Jewish.” (SOF
¶
27.) Upon receiving the call from
called her on Friday
Doe, Skiar e-mailed her manager, Tim McCarty, and told him that Doe had
t “because he is a
June 19, 2009 and June 21, 2009 and alleged that he was discriminated agains
Muslim.” (SOF
¶
31; Hill Cert., Ex. H.) He stated in a June 27, 2009 e-mail that Skiar and
(SOF
Sztejman “are Jewish, [Doe-i] is Muslim. You have a lot to explain.”
Ex. I.)
¶ 32;
Hill Cert.,
e they are
Doe further told Larry Askew that Sztejman and Skiar fired Doe-i becaus
Jewish. (SOF
¶
37; Askew Cert., Ex. A.) Doe also believed that Skiar treated Meyer more
10
5
s Mr. Meyer to be Jewish.
favorably because she favored Jewish people and Plaintiff believe
(SOF
¶ 28.)
she was Jewish
Doe also alleged that Sklar was “antagonistic” toward him because
(SOF
and he believed if she were his boss she would “stab [him] in the back.”
¶
16.) According
and this was a “motivating
to Doe, Skiar “had an obsession with the destruction of non-Jews”
factor” in his termination and Doe-I’s termination. (SOF
¶ 46.)
Sklar also understood Plaintiff
(SOF
to claim that he was discriminated against because he is a Muslim.”
¶ 31;
Hill Cert., Ex.
H.)
religious practices ever
Doe has argued that “[n]owhere, in Plaintiffs’ Complaints, [have]
asserts that Defendants failed
been asserted.” (Plaintiff’s Opposition BriefJ 3.) Furthermore, he
h naturalized citizen[] and
to address the fact that “Plaintiffs were an Arab Egyptian and a Turkis
when asked what his race is,
all [D]efendants were Jewish Americans.” (Id.) At his Deposition,
that Stzejman and Skiar are
Doe responded “Arabic.” (Hill Cert., Ex. A, at 21.) He also stated
Jewish and “were antagonistic to Arabs and Muslims.”
(RI.)
He also discussed conflicts
asserted that a motivating
between “Jews and Arabs.” (Id. Ex. A, at 21-22, 25.) He further
tion of non-Jews. (Id.
factor in his termination was Skiar’s alleged “obsession with the destruc
Ex. A, at 29.) Doe also said he believed that “Judaism is a race.” (Id.)
that his complaints
Based on these facts, the Court does not accept Doe’s argument
ination.
addressed to Sizewise were based on racial or ethnic discrim
In his complaint to
and Doe-i because they are
Sizewise, Doe only alleged that Sklar discriminated against him
of religious discrimination, which
Muslim and she is Jewish. Therefore, his complaint was one
1981.
does not fall within the scope of protected activity under Section
‘
Meyer is not Jewish, however. (Meyer Cert,
¶ 3.)
11
under Section 1981, Doe’s
Even assuming that Doe’s complaints to Sizewise do fall
required for a section 1981 retaliation
claims fail under further analysis. Under the second prong
se on July 7, 2009. Under the third
claim, it is undisputed that Doe was terminated from Sizewi
derance of the evidence, a causal
prong, however, Doe has failed to establish by a prepon
termination from Sizewise. Doe
connection between his complaints of discrimination and his
ated approximately one week
asserts that there is a temporal connection because he was termin
after he complained of discrimination.
(P1. Opp. 6.)
However, he has not submitted any
Skiar immediately contacted her
evidence that Sizewise responded negatively to his complaint.
June 27, 2009 e-mail, Sizewise
supervisor following Doe’s June 21, 2009 call. Following Doe’s
with Doe two days later on
began investigating his complaints, sending Larry Askew to meet
tion that Sizewise did not tell him
June 29, 2009. Furthermore, Doe testified during his deposi
(Hill Cert., Ex. A, at 41.)
they were terminating him because of the complaints he made.
after [the protected activity]
“[T]he mere fact that [an] adverse employment action occurs
of demonstrating a causal link
will ordinarily be insufficient to satisfy the plaintiffs burden
494, 503 (3d Cir. 1997) (quoting
between the two.” Krouse v. Am. Sterilizer Co., 126 F.3d
; see also Malloy v. Intercall,
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997))
*20 (D.N.J. Dec. 28, 2010) (granting defendant’s
Inc., No. 08-1182, 2010 WL 5441658, at
to the fact that she complained
motion for summary judgment where plaintiff “merely point[ed]
and was terminated approximately two weeks later”).
Thus, “[o]nly where the facts of the
may temporal proximity, on its
particular case are so ‘unusually suggestive of retaliatory motive’
If temporal proximity is not
own, support an inference of causation.” Krouse, 126 F.3d at 503.
sh a causal link,
unusually suggestive, a plaintiff must use other evidence to establi
Planters Lifesavers Co., 206 F.3d 271, 279-81 (3d Cir. 2000).
12
Farrell v.
termination is not
Here, given all the surrounding circumstances, the timing of the
fact that Doe’s termination
“unusually suggestive of a retaliatory motive.” Other than the
aint, there are no facts to
occurred about a week after Sizewise began investigating his compl
the Court finds that Doe has
suggest that the termination was related to his complaint. Therefore,
failed to make a prima facie case of retaliation under Section 1981.
ion, Sizewise has
Even assuming that Doe could make a prima facie case of retaliat
Doe’s employment. Sizewise
asserted a legitimate, non-discriminatory reason for terminating
complained of Doe’s misconduct
claims that it terminated Doe’s employment after a customer
during a delivery to a Sizewise customer on July 1, 2009.
(Def. Br. 20.)
In fact, Sizewise
a Sizewise delivery person had
received a fax from its customer, Arbor Glen, complaining that
made inappropriate remarks to one of its female employees.
¶f
(SOF
4 1-42.)
While Doe
the letter from Arbor Glen
testified that he did not remember making a delivery to Arbor Glen,
Moreover, the service ticket
directly identifies Doe as the delivery person who was at fault.
(SOF
indicates that Doe made a delivery to Arbor Glen on July 1, 2009.
¶ 44.)
Doe asserts that
however, he offers no proof
Sizewise fabricated the evidence regarding Arbor Glen’s complaint,
Pl.’s SOF
to support this argument, (Def. Br. 20; Hill Cert., Ex. A, at 39;
¶
10.) The Court finds
discrimination. $çç Connolly v.
that this speculation is not enough to establish a pretext for
*4 (D.N.J. 2009) (granting defendant’s
Mitsui O.S.K. Lines, No. 04-5 127, 2009 WL 3055378, at
motion for summary judgment because plaintiff’s “speculation
demonstrate pretext”).
*
.
.
[was) not sufficient to
ff
Defendants are, therefore, entitled to summary judgment on Plainti
John Doe’s claim for Section 1981 retaliation.
13
2. Sklar’s Individual Liability
Plaintiff has asserted that Skiar is individually liable for retaliation under Section 198 1.
The Third Circuit has found that individuals who are personally involved in the discrimination
against a plaintiff may be held liable under Section 1981. Al- Khazraji v. Saint Francis College,
784 F.2d 505, 518 (3d Cir. 1986); see also Santiago v. City of Vineland, 107 F. Supp. 2d 512,
541-42 (D.N.J. 2000) (holding individual defendants liable under Section 1981 because they
were involved in the plaintiff’s discharge). Defendants assert, as does Skiar in her certification,
that she did not make the decision to terminate Doe’s employment. (Def. Br. 22; Sklar Cert.
¶
2.) Sizewise claims that Tim McCarty, Sizewise’s national Sales manager made the decision to
terminate Doe upon receiving the complaint from Arbor Glen. (Def. Br. 22; Guthrie Cert.
¶ 5.)
Plaintiff claims that Sklar “engaged in interviewing candidates for employment,” acted as
supervisor, recommended termination, and allegedly “terminated all minority workers from
employments [sic] prior to hiring Plaintiff John Doe.” (P1. Opp. 6.) While Skiar did interview
candidates and recommend hiring, (See SOF
¶ 4),
Plaintiff has not pointed to any evidence on
the record in support of the claim that Sklar made the decision to terminate Doe. Therefore, the
Court grants Defendants’ motion for summary judgment on Plaintiff’s claims against Sklar.
C. Plaintiff’s Cross-Motion
Discrimination
to
Reinstate
John
Doe-i’s
Claim
of
Racial
Plaintiff has asked this Court to reinstate Doe-l ‘s claims against Sizewise and Skiar
because “[D]efendants have obstructed discovery for twenty four (24) months, where such
botched discovery concealed the fabricated evidence of terminating John Doe-i
Pl,’s SOF
¶
.“
(P1, Opp. 9;
11.) Plaintiff also alleges that Meyer had a “part in causing the alleged accidents
attributed to John Doe-I” and that Sklar conspired in “terminating minority workers with
14
falsified evidence.” (P1.
Opp.
9; see also Pl.’s SOF
¶
5) In their Reply, Defendants argue that
they have provided Plaintiff with all relevant documents regarding termination. (Def. Reply
Br.
5.)
Furthermore, in Judge Linares’s Letter Opinion dated November 22, 2010, this Court
considered Doe-i ‘s claims and dismissed them with prejudice. The Court also considered
and
denied Plaintiff’s motion for reconsideration regarding those claims, as discussed in
a Letter
Opinion dated January 14, 2011.
The Court also notes that to the extent that Doe is attempting to represent Doe-i in any
respect on the pending motions, he is not empowered to do so.
Huertas v. Certified Credit &
Collection Bureau, No. 08-1996 2008, WL 2165181, at *i.2 (D.N.J. 2008); McShane v.
United
States, 366 F.2d 286, 288 (9th Cir. 1966) (stating that a pro se plaintiff “has no author
ity to
appear as an attorney for others than himself”); Fymbo v. State Farm Fire & Cas. Co., 213
F.3d
1320, 1321 (10th Cir. 2000) (“A litigant may bring [his] own claims to federal court withou
t
counsel, but not the claims of others.”). Therefore, the Court finds that there is no basis
to
reinstate Doe-i ‘s claims against Defendants.
D. Plaintiff’s Cross-Motion to Strike Defendants’ Documents That Disclose
Plaintiffs’ Real Names
Plaintiff has also requested that this Court strike documents submitted by Defendants that
disclose Plaintiffs’ real names.
Pursuant to this Opinion, the Order permitting Plaintiffs to
proceed anonymously has been vacated. Therefore, this request is moot.
V.
CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment is granted
and the Court will vacate the Order permitting Plaintiffs to proceed using pseudo
nyms.
Plaintiff’s motion to reinstate Doe-I ‘s claims and to strike documents that reveal Plaintiffs’
real
15
names is denied. An appropriate Order follows.
CLAIRE C. CECCHI, U,S.D.J.
DATED: April 10, 2012
16
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