FRAZIER v. BED BATH & BEYOND INC. et al
Filing
54
OPINION. Signed by Judge William J. Martini on 4/29/13. (gh, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:10-05398 (WJM)
KEVIN FRAZIER,
Plaintiff,
OPINION
v.
BED BATH AND BEYOND INC. &
GARY NEWTON
Defendants.
Plaintiff Kevin Frazier, a database administrator who was fired from his job
at Bed Bath and Beyond (“BBB”), brings this employment discrimination case
against BBB and Frazier’s former supervisor, Gary Newton (together
“Defendants”). Defendants move for summary judgment pursuant to Federal Rule
of Civil Procedure 56. Defendants also move for an adverse inference based on
spoliation. There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons set
forth below, summary judgment is GRANTED IN PART and DENIED IN
PART. The adverse inference is DENIED.
I.
BACKGROUND
On May 7, 2007 Plaintiff Kevin Frazier began working as a database
administrator for BBB’s SQL team. Defs.’ Statement of Undisputed Material
Facts (“DSF”) ¶ 1, ECF No. 46-1. Frazier’s manager was Gary Newton; Newton’s
manager was David Ortiz. Id. ¶ 3. Besides from supervising the SQL team,
Newton also supervised the Oracle team and the DB2 team. Id. ¶ 32.
Inappropriate Emails
During his time at BBB, Frazier, who is African-American, received two
racially insensitive emails. On August 11, 2008, a co-worker named Denise Del
Ray sent Frazier an email containing several offensive images of AfricanAmericans (the “Del Ray Email”). Id. ¶ 7. Frazier did not report the email to his
supervisor or Human Resources until February 10, 2009. Id. ¶ 11.
1
On November 4, 2008, David Rubin, an outside consultant sent Frazier an
email with the subject line “Ghetto Spongebob” (the “Rubin Email”). Id. ¶ 16.
Frazier’s reply, “lmao,” indicated amusement. Id. ¶ 17. One day later, Frazier
changed his mind. He forwarded the “Ghetto Spongebob” email to Ortiz and told
Ortiz that he was offended by the message. Id. ¶ 19. Id. Ortiz said he would
direct Rubin to stop sending inappropriate emails. Id. ¶ 20.
Alleged Acts of Retaliation
On December 16, 2008, more than five weeks after Frazier reported the
“Ghetto Spongebob” email to Ortiz, Frazier’s on-call schedule was changed. Id. ¶
35. Until that point, Frazier had alternated on-call hours with an outside vendor
called Data Futures. Id. ¶ 36. Going forward, Frazier would be on-call 24-7. Id. ¶
34. It is undisputed that Frazier’s predecessor at BBB had the same on-call
schedule. Id. ¶ 40. It is undisputed that Frazier’s successor at BBB had the same
on-call schedule. Id. ¶ 41. And it is undisputed that members of the Oracle team
and the DB2 had the same on-call schedule. Id. ¶¶ 42-43.
Also on December 16, 2008, Frazier was told that his workday, which began
at 9 a.m. and ended at 5 p.m., would now begin at 8 a.m. and end at 5 p.m. Pl.’s
Statement of Undisputed Materials Facts (“PSF”) ¶ 39, ECF No. 51-1; Frazier
Transcript 116:24-117:25. At the time, Frazier claims, “everybody else” was
working from 9 to 5. Frazier Dep. at 115:1-5, ECF No. 51-4. Specifically, Frazier
identified Vinu, Diane, and Lisa as co-workers who worked an eight-hour day. Id.
at 115:6-11. It is unclear from the record whether Frazier had firsthand knowledge
of his colleagues’ work hours. Indeed, the colleagues identified by Frazier
submitted declarations stating that they worked from 8 a.m. to 5 p.m. Del Rey
Declaration, ECF No. 53-2; Thomas Declaration, ECF No. 53-3; McHugh
Declaration, ECF No. 53-4; see also Newton Declaration, ECF No. 53-1.
The record is not clear when, but probably at some point in Fall 2008, Ortiz
asked Frazier to perform an SQL 2008 installation. DSF ¶ 44. In preparation for
the installation, BBB enrolled Frazier in a training class. Id. ¶ 45. The vendor
proceeded to cancel the class a number of times, and BBB told Frazier it planned
to find another vendor. Id. ¶ 46. On the day Frazier was required to perform the
installation, he had yet to take the class. Id. ¶ 47.
Though Frazier successfully completed the installation, id., he was
concerned about not receiving the necessary training. Ortiz told Frazier that it was
not Frazier’s place to air his concerns. PSF ¶ 40 (quoting Frazier Dep. at 162:24163:17). In response, Frazier smiled. Id. Ortiz replied: “You know, you need to
stop smiling or I’ll give you something to smile about.” Id.
On February 10, 2009, Frazier reported the November 5, 2008 “Ghetto
Spongebob” email to BBB’s Human Resources Department. DSF ¶ 24. That same
2
day, Frazier met with Human Resources Manager Denise DiPiano. Id. ¶ 25.
DiPiano subsequently spoke with both Ortiz and Del Ray. DiPiano learned that
Ortiz had instructed Rubin to stop sending inappropriate emails. Id. ¶ 30. DiPiano
told Del Ray that Del Ray would face severe discipline if she continued to send
inappropriate emails. Id. ¶ 31.
Not two weeks later, on February 21, 2009, Frazier filed a discrimination
charge with the Equal Employment Opportunity Commission (“EEOC”) alleging
race discrimination. Id. ¶ 51.
Frazier’s Performance Review and Subsequent Termination
On Friday, May 8, 2009, Newton sat down with Frazier for a performance
review. Id. ¶ 54. Frazier received an evaluation of “Meets Expectations,” and he
was told his salary was being increased. Id. ¶¶ 55, 56. The next business day,
Frazier was terminated. Id. ¶ 68. The parties offer wildly different accounts of the
termination.
Defendants offer the following account of his termination: On May 8,
2009, Frazier and Newton met to discuss Frazier’s performance review. Id. ¶ 54.
In 2008, Frazier had received a review of “Meets Expectations+”. Id. ¶ 53. This
time, Frazier was given a review of “Meets Expectations.” Id. ¶ 55. Frazier
accused Newton of lying on the performance review, and he told Newton that the
review was retaliatory. Newton Dep. at 80:9-13, 84:16-20, ECF No. 46-4. Before
the meeting concluded, Frazier got up and stormed out of the room. DSF ¶ 60.
The next business day, Monday, May 11, Frazier stopped by Newton’s cubicle at
8:30 a.m. Id. ¶ 61. Newton asked if Frazier wanted to continue the performance
review meeting, and Frazier said yes. Newton Dep. at 113:14-20. Frazier walked
away, but he returned ten minutes later. Id. 114:2-5. In an exchange witnessed by
co-workers, Frazier proceeded to scream at Newton, call Newton a liar, and refuse
to reconvene the performance review meeting. DSF ¶¶ 62-63. The outburst was
brought to the attention of BBB Vice President of Human Resources Connie Van
Dyke and BBB Director of Corporate Human Resources Paul DePrima. Together,
Van Dyke and DePrima decided that DePrima and Newton would meet with
Frazier to discuss Frazier’s conduct. Id. ¶ 65. If Frazier admitted to the conduct
described by Newton, Frazier would be terminated. Id. ¶ 66. DePrima and
Newton proceeded to meet with Frazier. At the meeting, Frazier admitted calling
Newton a liar. Id. ¶ 69. Based on this acknowledgement, and based on Frazier’s
refusal to finish his performance review, DePrima fired Frazier on the spot. Id.
Frazier offers the following account of his termination: On May 8, 2009,
Frazier and Newton sat down for Frazier’s performance review. At the meeting,
Frazier noted that certain ratings had been downgraded from the previous year.
PSF ¶ 58. Frazier told Newton that he disagreed with parts of the review, and that
3
he believed the review was retaliatory. Id. ¶¶ 59-60. But Frazier did not call
Newton a liar. Id. ¶ 64. When the meeting was over, Frazier asked for a copy of
his review. Id. ¶ 61. He was told he could not have one. Id. Frazier had no
further interaction with Newton until he met with Newton and DePrima on May
11, 2009. Id. ¶ 67. At that meeting, DePrima said: “We can – we feel that we can
no longer trust you because of filing EEOC complaints and we know that you are
unhappy, so today is your last day.” Id. (quoting Frazier Tr. at 170:8-14).
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides for summary judgment “if the
pleadings, the discovery [including, depositions, answers to interrogatories, and
admissions on file] and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Turner v. Schering–Plough Corp., 901 F.2d 335, 340
(3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the
non-moving party, and is material if it will affect the outcome of the trial under
governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court considers all evidence and inferences drawn therefrom in the
light most favorable to the non-moving party. Andreoli v. Gates, 482 F.2d 641,
647 (3d Cir. 2007). “Conclusory statements, general denials, and factual
allegations not based on personal knowledge [are] insufficient to avoid summary
judgment.” Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d
Cir. 1972).
III.
DISCUSSION
The Complaint asserts eight causes of action. Count VIII, which asserts a
violation of the Fair Labor Standards Act, was dismissed pursuant to stipulation.
ECF No. 33. Counts I, III, and V assert hostile work environment claims under 42
U.S.C. § 1981 (“Section 1981”), Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000(e) (“Title VII”), and the New Jersey Law Against Discrimination
(“NJLAD”). In his opposition brief, Frazier states that he “does not contest
dismissal of his racial hostile work environment . . . Counts in the Complaint.”
Pl.’s Br. at 36 n.11, ECF No. 51. Accordingly, the Court will DISMISS Counts I,
III, and V WITH PREJUDICE.
Defendants move for summary judgment on the remaining claims, Counts II,
IV, VI, and VII. Counts II, IV, and VI allege retaliation by both Defendants, in
4
violation of Section 1981, Title VII, and the NJLAD. Count VII, directed at
Newton only, alleges aiding and abetting violations of the NJLAD.
A.
CLAIMS AGAINST BBB
In Counts II, IV, and VI, Frazier asserts retaliation claims against BBB.1
Frazier’s claims proceed under two theories. First, Frazier argues that his
termination was retaliatory. Second, Frazier argues that he was subject to
retaliatory harassment.
1.
Retaliatory Termination
The parties offer wildly different accounts of Frazier’s termination. Frazier
maintains that BBB’s Director of Corporate Human Resources told him that he
was being fired because of his EEOC complaint. This is enough to survive
summary judgment. See Moore v. City of Philadelphia, 461 F.3d 331, 340-41 (3d
Cir. 2006); see also Montone v. City of Jersey City, 709 F.3d 181, 191 (3d Cir.
2013) (“In considering a motion for summary judgment, a district court may not
make credibility determinations or engage in any weighing of the evidence;
instead, the non-moving party’s evidence is to be believed[,] and all justifiable
inferences are to be drawn in his favor.”) (internal quotation and citation omitted).
Accordingly, the Court will DENY summary judgment on the retaliatory
termination claims.
2.
Retaliatory Harassment
Based on the undisputed facts, summary judgment is proper on Frazier’s
retaliatory harassment claim. Even if Frazier has set forth evidence of an adverse
employment action, he has not set forth evidence of causation.
The Third Circuit recognizes a retaliation claim based on a hostile work
environment. See Jensen v. Potter, 435 F.3d 444, 448 (3d Cir. 2006), overruled in
part on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53
(2006). To set forth a prima facie case of retaliatory harassment, a plaintiff must
demonstrate “(1) she engaged in protected activity, (2) she was subject to
‘materially adverse’ action against her, and (3) there was a causal connection
between her protected activity and the employer’s action. Seybert v. International
Group, Inc., No. 7-3333, 2009 WL 722291, at *20 (E.D. Pa. Mar. 17, 2009) (citing
1
The parties agree that the governing law is substantially the same for each count. Def.’s Br. at
6 n.2, ECF No. 48; Pl.s’ Br. at 3-4, ECF No. 51.
5
Moore, 461 F.3d at 340-41). Timing alone cannot establish causation unless the
period between the protected act and the retaliatory act is “unusually suggestive of
retaliatory motive.” Krouse v. American Sterilizer Co., 126 F.3d 494, 503 (3d Cir.
1997) (internal citation and quotation omitted).
Frazier argues that four acts, when considered in the aggregate, constitute a
materially adverse employment action. First, Frazier was given 24-7 on-call
responsibilities. Second, Frazier was required to install a database without the
proper training. Third, after Frazier raised concerns about having to perform
projects without the necessary training, Ortiz said: “You know, you need to stop
smiling or I’ll give you something to smile about.” Frazier Dep. at 162:24163:17). Fourth, BBB changed Frazier’s schedule so that he was working one hour
more each day than his peers.
It is clear that when Frazier’s on-call schedule was changed, he was not
being treated differently from similarly situated co-workers, from his predecessor,
or from his successor. The Court does not dispute that a change in Frazier’s hours
was unwelcome. But viewed in context, the schedule change was not retaliatory
harassment. Moreover, when the Court aggregates the schedule change with
Ortiz’s threat and the imposition of a tight deadline, the Court does not find that
retaliatory harassment occurred. See Robinson v. City of Pittsburgh, 120 F.3d
1286, 1297 (3d Cir. 1997), overruled on other grounds by Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53 (2006) (“[Not every] insult, slight, or
unpleasantness gives rise to a valid Title VII claim.”).
The last act Frazier alleges to be retaliatory was changing his daily work
hours from 8 a.m. to 5 p.m. Frazier claims that his work hours were originally 9
a.m. to 5 p.m. DSF ¶ 39. On December 16, 2008, when Frazier learned about the
changes to his on-call schedule, he was told that his workday would begin at 8
a.m., not 9 a.m. Frazier Tr. 115:1-15, 116:24-117:1. Frazier claims that the
change in hours was retaliatory because he was made to work one hour more per
day than his colleagues. As an initial matter, there is no indication that Frazier had
firsthand knowledge of his colleagues’ schedules. If Frazier’s testimony was
secondhand or speculative, the Court may not consider it for summary judgment
purposes. See Wertheimer v. Singer, No. 6-6233, 2009 WL 197515, at *1 (D.N.J.
Jan. 26, 2009) (citing Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141,
1146 (3d Cir. 1972) (“Conclusory statements, general denials, and factual
allegations not based on personal knowledge [are] insufficient to avoid summary
judgment.”). The firsthand testimony in the record indicates that Frazier’s
testimony about his colleagues was incorrect and not based on personal
knowledge. See Del Rey Declaration, ECF No. 53-2; Thomas Declaration, ECF
No. 53-3; McHugh Declaration, ECF No. 53-4; Newton Declaration, ECF No. 531.
6
But even if the Court were to accept that Frazier was made to work longer
hours than his colleagues, summary judgment would still be proper based on a
failure to establish causation. Frazier’s work hours were changed on December 16,
2008. Frazier Transcript 116:24-117:25. The only protected activity pre-dating
that change was Frazier’s complaint to Ortiz about the Rubin email on November
5, 2008. The five week gap between the complaint and the schedule change is not,
by itself, “unusually suggestive of retaliatory motive.” Id.; see Williams v. Phila.
Hous. Auth. Police Dep’t, 380 F.3d 751, 760 (3d Cir. 2004) (two months not
unusually suggestive); Carmody v. Pa. State Univ., No. 5-1645, 2007 WL
1074862, at *8 (M.D. Pa. Apr. 9, 2007) (one month not unusually suggestive). As
Frazier offers no other evidence of causation, the Court will GRANT summary
judgment on the retaliation claims alleging retaliatory harassment.
B.
CLAIMS AGAINST NEWTON
In Counts II, IV, and VI, Frazier asserts retaliation claims against Newton.
In Count VII, Frazier asserts that Newton aided and abetted a violation of the
NJLAD. As with Frazier’s claims against BBB, Frazier’s claims against Newton
proceed under two theories: retaliatory termination and retaliatory harassment.
Newton moves for summary judgment on all counts.
1.
Retaliation
Frazier argues that Newton is liable for the same retaliation violations as
BBB. First, Frazier argues that Newton is liable for Frazier’s termination. Second,
Frazier argues that Newton is liable for retaliatory harassment. The Court finds
that summary judgment is proper on the retaliatory harassment theory but not on
the retaliatory termination theory.
For the reasons set forth in Section III.A.2, Frazier has failed to set forth
evidence of retaliatory harassment. Accordingly, the Court will GRANT summary
judgment in Newton’s favor on Counts II, IV, and VI to the extent they allege
retaliatory harassment.
Next, the Court will DENY summary judgment on the retaliatory
termination theory. Individuals are directly liable for retaliatory termination under
Section 1981 if they “intentionally caused [their employer] to infringe on
[plaintiff’s] Section 1981 rights, or if they authorized, directed, or participated in
the alleged discriminatory conduct.” Al-Khazraji v. St. Francis College, 784 F.2d
505, 518 (3d Cir. 1986). 2 There is no evidence that Newton authorized or directed
2
Newton does not argue that the standard for individual liability is different under Title VII or the NJLAD.
7
Frazier’s termination. But a jury could conclude that Newton participated in the
termination. One day before Frazier was fired, Frazier met with Newton for his
performance review. During that meeting, Newton acknowledges, Frazier
complained that his performance review was retaliatory. The next business day,
Frazier met with Newton and DePrima. At that meeting, Frazier claims he was
told: “We can – we feel that we can no longer trust you because of filing EEOC
complaints.” Crediting Frazier’s account, a reasonable jury could conclude that
Newton participated in the termination.
2.
Aiding and Abetting Retaliation
Count VII asserts a claim against Newton for aiding and abetting violations
of the NJLAD. Defendants move for summary judgment on this claim, arguing
that Newton did not knowingly assist a violation of the NJLAD or exhibit
deliberate indifference to a violation of the NJLAD.
Aiding and abetting liability under the LAD can be active or passive. See
Lopez-Arenas v. Zisa, No. 10-2668, 2012 WL 933251, at *8 (D.N.J. Mar. 19,
2012). “To establish the former—the active—form of aiding and abetting liability,
a plaintiff must show that (1) the party whom the defendant aids must perform a
wrongful act that causes an injury; (2) the defendant must be generally aware of his
role as part of an overall illegal or tortious activity at the time that he provides the
assistance; and (3) the defendant must knowingly and substantially assist the
principal violation.” Id. (internal citations omitted). “To establish the latter—the
passive—form of aiding and abetting liability, a plaintiff mush show that the
supervisor holds a duty to act against harassment and yet remains deliberately
indifferent to its existence.” Id. Frazier does not argue that Newton should be
liable for passive aiding and abetting. Instead, he focuses on active aiding and
abetting.
Here, a jury can find that BBB is liable for a single principal violation:
retaliatory termination. Accordingly, to the extent Frazier’s aiding and abetting
claim concerns retaliatory harassment, the Court will GRANT summary judgment
in Newton’s favor. However, to the extent Frazier’s aiding and abetting claim
concerns Newton’s role in Frazier’s termination, the Court will DENY summary
judgment. For the reasons described in the previous section, a jury could find that
Newton actively aided and abetted a violation of the NJLAD. Specifically, a jury
could conclude that Newton aided a wrongful act (Frazier’s termination) that
Newton was generally aware of his role, and that Newton knowingly and
substantially assisted the principal violation.
8
C.
ADVERSE INFERENCE
Defendants argue that Frazier spoliated notes he took in his meeting with
Newton and DePrima. Defendants ask the Court to impose an adverse inference
that the allegedly destroyed evidence “stated the true non-discriminatory reason
that Frazier was given for his termination.” Defs.’ Br. at 26. As Defendants’
spoliation charge rests on disputed facts, the Court will not impose an adverse
inference at this time.
Spoliation is “the destruction or significant alteration of evidence, or the
failure to preserve property for another’s use as evidence in pending or reasonably
forseeable litigation.” Mosaid Technologies Inc. v. Samsung Electronics Co., Ltd.,
348 F. Supp. 2d 332, 335 (D.N.J. 2004) (quoting Zubulake v. UBS Warburg LLC,
No. 2-1243, 2004 WL 1620866, at *15 (S.D.N.Y. July 20, 2004)). The movant
bears the burden of establishing spoliation. Williams v. Klem, No. 7-1044, 2010
WL 3812350, at *2 (M.D. Pa. Sept. 22, 2010). “Potential sanctions for spoliation
include: dismissal of a claim or granting judgment in favor of a prejudiced party;
suppression of evidence; an adverse inference, referred to as the spoliation
inference; fines; and attorneys’ fees and costs.” Id. An adverse inference will
issue based on spoliation when “the destroyed evidence might or would have been
unfavorable to the position of the offending party.” Scott v. IBM Corp., 196 F.R.D.
233, 248 (D.N.J. 2000). To impose an adverse inference, the Court must conclude
that: “(1) the evidence was within the party’s control; (2) there was an actual
suppression or withholding of evidence; (3) the evidence was destroyed or
withheld was relevant to the claims or defenses; and (4) it was reasonably
foreseeable that the evidence would be discoverable.” Gatto v. United Air Lines,
Inc., No. 10-1090, 2013 WL 1285285, at *3 (D.N.J. Mar. 25, 2013) (citing Mosaid,
348 F. Supp. 2d at 336).
In his deposition, DePrima testified that Frazier took notes on the back of a
business card while he was being terminated. It is undisputed that Frazier failed to
produce the business card in discovery. But Frazier denies taking notes on the
business card. Newton’s deposition testimony appears to confirm Frazier’s
account. Asked to describe what occurred at the termination meeting, Newton said
nothing about Frazier’s note taking.
For an adverse inference to issue, Defendants must establish spoliation. To
establish spoliation, Defendants must demonstrate that the business card was
“relevant to the claims or defenses” at issue in the case. If Frazier took notes on
the business card, it was most likely relevant; if Frazier did not take notes on the
business card, the business card was irrelevant. Given the factual dispute about
whether Frazier took notes on the business card, Defendants have not demonstrated
that the business card contained information relevant to this case. Accordingly, the
9
Court will DENY the request for an adverse inference. The Court will be willing
to revisit the issue at trial. See Williams v. Klem, No. 7-1044, 2010 WL 3813250,
at *3 (M.D. Pa. Sept. 22, 2010) (deferring spoliation ruling to trial where
underlying facts were contested).
IV.
CONCLUSION
For the reasons stated above, Defendants’ motion for summary judgment is
GRANTED IN PART and DENIED IN PART. The Court will DENY summary
judgment for both Defendants on Counts II, IV, and VI to the extent the counts
allege retaliatory termination. The Court will GRANT summary judgment for
both Defendants on Counts II, IV, and VI to the extent the counts allege retaliatory
harassment. The Court will GRANT summary judgment for Newton on Count
VII to the extent the count alleges aiding and abetting retaliatory harassment, and it
will DENY summary judgment on Count VII to the extent the count alleges aiding
and abetting retaliatory termination.
The Court will DENY the request for an adverse inference.
Finally, the as Frazier does not contest the dismissal of his hostile work
environment claims, the Court will DISMISS Counts I, III, and V with prejudice.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: April 29, 2013
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?