JOSEPH v. NEW JERSEY TRANSIT RAIL OPERATIONS INC. et al
Filing
38
OPINION fld. Signed by Judge Jose L. Linares on 10/17/13. (sr, )
_____
_____
_
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MCDONALD JOSEPH,
Civil Action No. 12-1600 (JLL)
Plaintiff,
OPINION
V.
NEW JERSEY TRANSIT RAIL
OPERATIONS, INC., et al.
Defendants.
LINARES, District Judge.
This matter comes before the Court by way of a motion for summary
judgment pursuant
to Federal Rule of Civil Procedure 56. The motion was filed by Defendants
New Jersey Transit
Rail Operations, Inc. and N.J. Transit, Inc. (collectively, “N.J. Transi
t”); and Paul DeCola
(“DeCola”), Leland Parsons (“Parsons”), and William Tidd
(“Tidd”) (collectively, the
“Individual Defendants”). The Court has considered the submissions
made in support of and in
opposition to Defendants’ motion, and considers this matter withou
t oral argument pursuant to
Federal Rule of Civil Procedure 78. For the reasons set forth below,
Defendants’ motion is
GRANTED.
I.
FACTUAL BACKGROUND
This action arises out of Defendants’ allegedly wrongful termination
of Plaintiffs
employment with N.J. Transit. Specifically, Plaintiff claims that his
employment was terminated
because (1) he complained about racial discrimination; (2) he raised
certain safety concerns to
the Federal Railroad Administration (“FRA”); and (3) he is black.
1
A.
Plaintiff’s Employment History With N.J. Transit
Plaintiff was hired by N.J. Transit as a Trackman in July 2006. (Def. Statement of
Undisputed Material Facts (“SUMF”) at ¶ 1.) Plaintiffs duties included digging, moving ties,
moving rail, and other miscellaneous duties as assigned by his supervisors. (Id. at 2.) Plaintiff
¶
was promoted to Class II Operator in June 2009, and then Class I Operator in April 2010. (Id. at
¶ 3.) In both of these positions, Plaintiff operated machines that built and/or repaired N.J.
Transit’s rail lines. (Id. at ¶ 4.) Plaintiff’s promotion to Class I Operator permitted him to
operate larger machines. (Id. at ¶ 5.)
B.
N.J. Transit’s Rail Division
N.J. Transit’s Rail Division has three crews, colloquially known as “gangs”
—
the tie
gang, the rail gang, and the surfacing gang. (Id. at ¶ 6.) For most of his tenure at N.J. Transit,
Plaintiff was a per diem employee, meaning that he could be assigned to any location. (Id. at
¶
7.) Therefore, Plaintiff worked on many different gangs in many different locations. (Id. at 8.)
¶
Depending on the assignment and location, there could be anywhere from five to thirty people
working on a gang. (Id. at ¶ 9.)
C.
The Collective Bargaining Aeement
Plaintiff belonged to a union which has a Collective Bargaining Agreement (“CBA”)
with N.J. Transit. (Id. at ¶ 10.) The CBA sets forth a system by which employees can either
‘bid’ or ‘bump’ to get assigned to a particular job and/or machine. (Id. at 11.)
¶
The title of “Class I Operator” or “Class II Operator” does not automatically entitle an
employee to operate every machine within that class. (Id. at 12.) Rather, there is a
¶
qualification process for each machine. (Id. at ¶ 13.)
2
If an employee bids on a machine on which he is not already qualified, he spends a month
with a qualified operator who shows him how to operate the machine. (Id. at 14.) After that
¶
month, the employee is tested by one of N.J. Transit’s Work Equipment Supervisors, and the
Work Equipment Supervisor then determines if the employee is sufficiently knowledgeable to be
qualified on the machine. (Id. at ¶ 15.) If the employee passes the test, the machine is added to
his qualification card, which lists all of the machines that the employee is qualified to operate.
(Id. at ¶ 16.) Additionally, employees can learn machines voluntarily during any down time they
may have, or a supervisor could offer training on a machine for which there is a need for an
operator. (Id. at ¶ 17.)
An employee can also be “bumped” (or displaced) by someone with more seniority,
which means that the employee will have to make a new bid or bump a junior employee. (Id.
at
¶ 18.) If an employee is bumped out of a position for operating a particular machine, and he
knows how to operate the machine, he can make a request in writing indicating that he wants
to
prove his proficiency to qualify for that machine. (Id. at
¶ 19.) If the employee shows that he
can qualify on the machine, he can make a “bump.” (Id.)
D.
Plaintiffs Job Duties
Plaintiffs regular work hours were from 7:30 a.m. to 4:30 p.m. (Id. at
he would arrive at work, Plaintiff would attend a morning briefing. (Id. at
¶ 21.) Each day
¶ 22.) After the
briefing, Plaintiff would inspect the machine he was operating that day and complete a form
titled “Operators Inspection Report.” (Id. at ¶ 23.)
Plaintiff was taught to do the inspection by the person who trained him on a particu
lar
machine. (Id. at
¶ 24.) The process for completing the “Operators Inspection Report” required
Plaintiff to inspect the machine, note anything that was missing, and note any work
that needed
3
to be done to the machine. (Id. at
¶ 25.)
Plaintiff was expected to report any and all problems
with the machine he was to operate on any particular day. (Id. at 26.)
¶
The “Operators Inspection Reports” were submitted to the supervisor or the forema
n once
a week, and then forwarded to the repairmen in the Maintenance Department. (Id. at
¶ 28.)
It
would then become the mechanics’ job to perform any necessary repairs. (Id. at
¶ 29.)
The mechanics work in a separate department headed by Jack Morrone (“Morr
one”),
Supervisor of Work Equipment.
(Id. at
¶
31.)
Plaintiff never worked as a mechanic in
Morrone’s department. (Id. at ¶ 33.)
E.
Plaintiff’s Complaints Regarding the BR-400 Machine
One of the machines that N.J. Transit operators use is the BR-400, which fixes damag
ed
tracks by pushing rocks and gravel into those tracks. (Id.
¶J
34-3 5.) Plaintiff began working
with the BR-400 machine sometime in early 2009, and operated it periodically betwee
n 2009 and
July 2010. (Id. at ¶J 36.)
Plaintiff felt there were several problems with the BR-400, but of these, the brakes
were
his primary concern. (Id.
¶ 41.)
Plaintiff claims that he began raising these concerns when he
first bid the BR-400 in early 2009. (Id. at
¶ 42.)
Specifically, Plaintiff noted his concerns in
writing on his “Operations Inspection Report,” and verbally to both his superv
isor, Domingo
Gotay (“Gotay”), and gang foreman, Frank Attardi (“Attardi”). (Id. at
¶ 43.)
Gotay responded
that he would address the issue, and informed Morrone of Plaintiff’s compla
ints regarding the
BR-400. (Id. at ¶ 44.)
Morrone inspected the machine and found nothing wrong with it. (Id. at
¶ 46.)
Plaintiff
then also expressed concerns regarding the brakes on the DB2O1, a machine with
brakes similar
to those on the BR-400. (Id. at ¶ 47.) Morrone conducted a demonstration for
Plaintiff in which
4
he had a repairman drive the DB2O1 and slam the brakes as a means of addres
sing Plaintiff’s
concerns.
(Id. at
¶J 48-49.) According to Morrone, the issue was not with the brakes
themselves, but with the pressure that Plaintiff was applying to the brakes. (Id.
at ¶ 50.)
Prior to July 19, 2010, Plaintiff’s only written complaints regarding the BR-40
0 were his
“Operators Inspection Reports.” (Id. at
¶
51.) “Operators Inspection Reports” were typically
kept in the machine for seven days and then discarded. (Id. at
¶
53.) Plaintiff claims that he
maintained some personal copies of his “Operators Inspection Reports.” (Id. at
¶ 54.)
During the discovery phase of this case, Plaintiff produced two batches of “Opera
tors
Inspection Reports.” One batch of reports are for dates ranging from August ii,
2009 to October
24, 2009; a second batch are for dates ranging from April 30, 2010 to May 7, 2010.
(Id. at ¶J 5556.) Plaintiff did not complete the reports within each of these batches person
ally, and he does
not know who did. (Id. at ¶ 57.) Further, Plaintiff was not working on the BR-40
0 during these
time periods, and states that he grabbed the reports for these time periods by mistak
e. (Id. at 58.)
Plaintiff’s production omits an “Operators Inspection Report” from June
4, 2010,
indicating that the brake shoes were adjusted, and additional 2010 reports from
June 10, June 21,
July 6, July 15, July 27, August 4, August 12, August 24, September 7, Septem
ber 22, October 4,
October 13, October 25, and November 4, which all indicate that the brakes
on the BR-400 were
satisfactory. (Id. at ¶ 61.)
F.
Incident of July 19, 2010
On July 19, 2010, Plaintiff was working with the surfacing gang under the superv
ision of
Gotay. (id. at
¶ 62.) The regular operator of the BR-400 was absent that day.
(Id. at
¶ 63.)
After the morning briefing, gang foreman Attardi walked over to Plainti
ff and requested that he
run the BR-400. (Id. at
¶ 64.) Plaintiff shook his head to indicate that he would not run it.
5
(Id.
at
¶ 65.)
at
66.)
Thereafter, Attardi informed Gotay that Plaintiff did not want to run the machine. (Id.
Gotay then approached Plaintiff and asked if he would run the machine; Plainti
ff said,
“no.” (Id. at
¶ 67.)
Gotay then informed Plaintiff that he would have to put him out of service.
(Id. at68.)
As Plaintiff started to walk away, Gotay called him back and said that Supervisor
Bob
Cole (“Cole”) was on the phone and wanted to know if Plaintiff would run the machin
e. (Id. at ¶
69.) Plaintiff again said, “no,” after which point Gotay informed Plaintiff that Cole had
decided
to put him out of service, and advised that he contact his union and go home. (Id. at
¶ 70.)
The directive to place Plaintiff out of service ultimately came from Bill Tidd (“Tidd
”),
the Director of Rail Infrastructure and Inspection.
(Id. at
¶
71.)
Plaintiff signed a waiver
acknowledging that he was “guilty as charged” of violating N.J. Transit policy
, and agreeing to
accept the time out of service as discipline. (See Lichtenstein Cert., Ex. K.)
Plaintiff does not recall the last date on which he operated the BR-400 prior
to July 19,
2010, and admitted that it could have been weeks or months. (Def. SUMF at
¶J 75-76.) In spite
of Plaintiff’s concerns about the BR-400, he had never previously refused
to operate the
machine. (Id. at ¶ 77.) Additionally, Plaintiff admitted that on July 19, 2010,
he did not explain
to Attardi or Gotay why he did not want to operate the BR-400. (Id. at 78.)
¶
Of note, N.J. Transit has a procedure by which an employee may object
to operating a
machine either verbally or through a “Challenge Form.” (Id. at
¶ 79.)
The “Challenge Form” is
a means of protecting employees if they have safety concerns about
operating a particular
machine.
If an employee completes a “Challenge Form,” he does not have to
operate the
machine until the issue he has raised is resolved. (Id. at 80.)
¶
6
If Plaintiff had explained that he did not want to operate the BR-400 because he thought
it was unsafe, that would have constituted a verbal challenge, and Tidd would have ensured that
it was investigated. (Id. at ¶ 82.)
DeCola, a Track Supervisor, and his supervisor, Parsons, were not involved in the July
2010 incident in any way. (Id. at
¶ 83.) Additionally, DeCola never supervised Plaintiff when
the BR-400 was Plaintiff’s bid, and did not begin regularly supervising Plaintiff until Octobe
r
2010.
(Id. at
¶ 84.) DeCola became aware of the July 2010 incident only when Plaintiff
mentioned that he had issues with the machine, and had been taken out of service. (id. at
¶J 8586.)
Even after DeCola had become aware, his knowledge about this incident was limited
because he and Plaintiff never discussed it in detail. (Id. at ¶ 87.)
G.
Plaintiff’s Complaint to the FRA Regarding his Safety Concerns about the BR400
At some point before November 2010, Plaintiff reported his safety concerns about the
BR-400 to the FRA, and spoke to Ronald Marx (“Marx”), an FRA investigator. (Id. at
¶J 88-89,
92.) Specifically, Plaintiff told Marx that the brakes on the BR-400 were bad. (Id. at
¶ 90.)
Marx asked Plaintiff to email him photographs of the machine. (Id. at 91.) Plaintiff sent
Marx
¶
the requested photographs, which Plaintiff took with his personal camera. (id. at 94.)
¶
Some time after July 19, 2010, Plaintiff saw Marx at his worksite. (Id. at
Plaintiff saw Marx, he was near the BR-400. (Id. at
¶ 95.) When
¶ 96.) Marx asked Plaintiff if the BR-400
was the same machine about which he had complained. (Id.) After Plaintiff indicat
ed that it
was, Marx inspected the machine. (Id. at
¶ 97.) Thereafter, Marx issued an Inspection Report
with respect to the BR-400 and several other machines. (Id. at 98.) Marx’s report
indicated a
¶
few items for repair, but none serious enough to qualify for a violation.
(Id. at
¶ 99.)
Specifically, the only recommended repairs for the BR-400 concerned the ladder/
steps and the
7
windshield. (Id. at
¶
100.) N.J. Transit did not receive any citations or fines as a result of
Marx’s inspection. (Id. at ¶ 101.)
Plaintiff never informed Tidd, Parsons or DeCola that he had complained to the FRA.
(Id. at
¶
105.) Moreover, neither Tidd, Parsons, nor DeCola ever informed Plaintiff that they
were aware of his complaint to the FRA. (Id.
¶ 108.)
Parsons became aware of Plaintiff’s complaint to the FRA sometime after Marx inspected
the BR-400. (Id. at 109.) Tidd and DeCola became aware of Plaintiff’s FRA complaint only
after Plaintiff filed the instant action. (Id. at
¶{
110-11.) None of Plaintiff’s supervisors ever
threatened Plaintiff with any adverse consequences if he complained to the FRA. (Id. at 112.)
¶
H.
Events Leading to the Termination of Plaintiff’s Employment
In March 2011, Plaintiff was bumped into a “casual driver” position by an employee with
more seniority. (Id. at
¶
113.) As a result, Plaintiff went to N.J. Transit’s Assignment Office on
March 11, 2011, to make a new bid or bump himself. (Id. at
¶
114.) Plaintiff reviewed the
available positions, and chose to bump Anthony Villanova off of the 801 machine. (Id. at 115.)
The 801 machine, known as a “stabilizer,” is a very large machine that vibrates on the
track and permits trains to pass over the track at a normal speed following construction
work.
(Id. atJ 116.)
On March 14, 2011, Plaintiff arrived at work and informed his supervisors that he had
bumped the 801 machine. (Id. at
¶
117.) Plaintiff’s understanding was that the bump should be
permitted because he had more seniority than the person bumped, he was a Class I Operator,
and
he had some previous knowledge about the 801 machine. (Id. at 118.)
¶
Plaintiff’s previous knowledge about the 801 machine included moving the 801
machine
when he was on the “surfacing gang” supervised by Gotay. (Id. at
8
¶
119.) Plaintiff, however,
had never operated the 801 machine on the track. (Id. at
¶
120.) Therefore, when he arrived at
work on March 14, Plaintiff asked Parsons if there was a qualified operator available to go over
the 801 machine with him. (Id. at
¶
121.) Plaintiff also asked other operators—specifically,
Wayne Rasavage, Bruce Teuber (“Teuber”) and Lawrence Graziano (“Graziano”)—to advise
him on the operation of the 801 machine. (Id. at
¶
122.) Teuber and Graziano, who were both
qualified operators of the 801 machine, then went over the machine with Plaintiff. (Id. at 123.)
¶
Subsequently, foreman Dan Dooley told Plaintiff that he would have to bid another
machine. (Id. at ¶ 124.) Plaintiff protested, and Dooley told him to call Tidd. (Id. at 125.)
¶
Later that day, Tidd told Plaintiff that he could submit a written request to show
proficiency on the 801 machine and provide it to Morrone. (Id. at 126.) Plaintiff submitted the
request. (Id. at
¶
127.) Morrone then tested Plaintiff, and found him to be proficient on the 801
machine. (Id.) Based on Plaintiffs preliminary showing of proficiency, Tidd permitted
the
bump to stand. (Id. at ¶ 129.)
However, before Morrone qualified Plaintiff on the 801 machine, he needed to see
Plaintiff operate the machine on the track; this ultimately never happened.
(Id. at
¶
128.)
Although Plaintiff could not recall whether Tidd reserved the right to rescind the bump based
upon Plaintiffs performance on the track, he does recall that Tidd explained that permitting
the
bump was a safety issue, and that he had to be sure that Plaintiff knew how to run
the 801
machine. (Id. at
¶J
130-31.) If Plaintiff could not demonstrate that he knew how to run the 801
machine, Tidd intended to rescind the bid. (Id. at ¶ 132.)
The next morning, Plaintiff was inside the 801 machine when Tidd appeared at the job
site. (Id. at ¶ 133.) Tidd approached Plaintiff and told him that he could not authorize the
bump.
9
(Id. at
¶
134.) Tidd had learned that Plaintiff had asked other operators to show him how to
operate the machine, and became concerned about Plaintiffs ability. (Id. at 135.)
¶
Plaintiff asked why the bump could not be authorized since he had been previously told
that the bump could stand. (Id. at ¶ 136.) Tidd explained that there was a safety concern becaus
e
it was unclear whether Plaintiff knew how to operate the 801 machine. (Id. at
¶
137.) When
Plaintiff expressed confusion, he alleges that Tidd told him, “I don’t know what’s wrong
with
you people,” and then said, “show me what you know. Just show me what you know.” (Id.
at
¶
138, citing Lichtenstein Cert., Ex. B at 117:5-15.)
While this conversation was taking place, Morrone was present inside the 801 machine.
(Id. at
¶
139.) Plaintiff then proceeded to demonstrate what he knew about the machine, and
Morrone confirmed to Tidd that Plaintiff was performing the functions correctly. (Id.)
After the demonstration, Tidd permitted the bump to stand (with final approval still
pending Plaintiffs operation of the 801 machine on the track).
(Id. at
¶
140.)
Tidd then
informed Villanova that he would have to bid another job. (Id. at 141.)
¶
Plaintiff later spoke to DeCola, and asked, “What’s going on? Is it because I’m black?
”
(Id. at
¶
146.) Plaintiff asked DeCola this question because he believed that Tidd’s reference
to
“you people” was racially discriminatory.
(Id. at
¶
142.) DeCola allegedly “shrugged” the
question “off,” and had no response. (Id. at ¶ 147, citing Lichtenstein Cert., Ex. B at
114: 16-23.)
When Plaintiff arrived to work on March 17, 2011, he was told that he would have
a
qualified operator (i.e., Teuber) with him on the 801 machine that day. (Id. at
¶
149.) Plaintiff
then prepared the 801 machine, and moved it onto the siding track. (Id. at 150.)
Plaintiff asked
¶
DeCola if he was picking up Teuber before going out on the main track. (Id. at
¶
151.) DeCola,
who thought that Teuber was already in the 801 machine, told Plaintiff to wait while
he called
10
Parsons. (Id. at
¶J 152-53.) Plaintiff then allegedly asked DeCola if he could call his union, and
DeCola agreed. (Id. at ¶ 154.)
Subsequently, Plaintiff exited the 801 machine and walked approximately ten feet to call
his union representative on his cell phone. (Id. at
¶ 155.) According to Plaintiff, he is certain
that he put the 801 machine in “park” before exiting, and saw DeCola enter and exit the machine
while he was on the phone. (Id. at
¶J 156-57.) Later, DeCola yelled that the 801 machine was
moving, although Plaintiff claims that he did not see the machine move at all. (Id. at
¶J 160-61.)
Plaintiff then returned to the machine, and allegedly noticed that the levers had been tampered
with because the brake was off and the lever that had been in neutral was now in first gear. (id.
at1JJ 164-65.)
Following this incident, DeCola asked Plaintiff to provide a statement regarding what had
just occurred. (Id. at
¶ 166.) Plaintiff told DeCola that he saw him go into the machine, and
DeCola responded, “you’re crazy. You didn’t see me go into the machine.” (Id. at
¶ 167, citing
Lichtenstein Cert., Ex. B at 126:7-20.)
Shortly thereafter, Parsons arrived on the scene while Plaintiff was on the phone with
Herman Bullock (“Bullock”), a union representative.
Parsons while still on the phone with Bullock. (Id. at
(Id. at
¶ 169.) Plaintiff approached
¶ 170.) Parsons then said that he was not
going to have a three-way conversation, and asked Plaintiff to get off the phone and show
him
what happened. (Id. at
¶J 170-72.) Parsons also asked Plaintiff to provide a written statement,
which Plaintiff did not provide because he purportedly was feeling ill. (Id. at
¶J 173-75.)
During their conversation, Plaintiff told Parsons that he wanted to go to Penn Plaza.
(Id.
at
¶ 176.) Parsons then told Plaintiff that he was going to need to take a urine test, which
Plaintiff’s union representative assured was standard procedure following this
type of incident.
11
(Id. at ¶J 178-79.) Parsons drove Plaintiff to the testing facility in his truck. (Id. at ¶ 180.) Once
at the testing facility, Plaintiff allegedly became dizzy and passed out. (Id. at ¶ 184.) As a result,
Plaintiff was taken to a hospital. (Id. at ¶ 185.)
Once at the hospital, Plaintiff was treated for a panic attack and released shortly
thereafter. (Id. atJ 186.)
I.
Plaintiff’s Disciplinary Hearing and Subsequent Tennination
Following the March 17, 2010 incident, Plaintiff was taken out of service and charged
with several disciplinary violations, including: (1) leaving the 801 machine unattended and
allowing it to roll; (2) making an unauthorized call on his personal cell phone; (3) being
argumentative and insubordinate toward his supervisors; (4) being dishonest about his previous
experience with the 801 machine, and (5) accusing DeCola of releasing the brake of the 801
machine. (Id. at ¶ 187.)
Plaintiff appealed the disciplinary charges, and a two-day hearing was held on May 18
and 19, 2011. (Id. at
¶ 188.) Plaintiff had union representation at the hearing. (Id. at ¶ 190.)
Ten witnesses testified during the hearing and provided written statements which were
introduced as exhibits. (Id. at ¶ 192-93.) Plaintiff also had the opportunity to give testimony,
cross examine witnesses, and provide a closing statement. (Id. at ¶J 192-94.)
After the hearing, the transcript and exhibits were sent to Bruce Wigod (“Wigod”), Chief
Track Engineer, who made the ultimate decision to terminate Plaintiff’s employment. (See id. at
¶ 195; Lichtenstein Cert., Ex. U at 44:24-45:2.)’ Wigod decided to terminate Plaintiff’s
‘The Collective Bargaining Agreement requires one person within each department to be the person to issue formal
discipline; Wigod is that designated person within the Track Department, and was thus the only individual
authorized to terminate Plaintiff’s employment. (See Def. SUMF at 196.) Plaintiff denies that Wigod made the
decision to terminate him, in spite of his admission that Wigod had discretion as to what level of discipline to
impose. (See P1. Resp. SUMF at 207.) Plaintiff relies primarily on Defendants’ initial response to Plaintiff’s
Interrogatory No. 5, in which Defendants identified DeCola, Leland, and Parsons as individuals who “participated”
in the decision to terminate Plaintiff, to suggest that there is a genuine question of material fact as whether Wigod
12
employment because he felt the charges were egregious when considered cumulatively. (Id. at
¶
198.) The factors that played into Wigod’s decision included the following: (1) Plaintiff’s
disciplinary history of insubordination; (2) Plaintiffs refusal to provide a statement of the March
17, 2010 incident; (3) Plaintiffs unauthorized use of a cell phone; (4) Plaintiffs having left the
801 machine unattended; and (5) Plaintiffs having accused DeCola of sabotaging the machine.
(Id. at ¶ 200.) Wigod acknowledged the confusion surrounding Plaintiffs 801 machine bump,
but concluded that this confusion was not mitigating enough when accounting for the totality of
the circumstances. (Id. at ¶ 204.)
Although no one factor was dispositive, Wigod felt that Plaintiff’s most egregious
violation was his accusation against DeCola. (Id. at ¶ 201.) Wigod had credited DeCola’s
assertion that he did not sabotage the 801 machine, a credibility determination that was Wigod’s
prerogative to make. (Id.
¶J 202-03.)
On June 3, 2011, Plaintiff received notice of his dismissal from all service. (Id. at 206.)
¶
The level of discipline imposed was completely within Wigod’s discretion. (Id. at 207.) The
¶
person who replaced Plaintiff on the 801 machine was Aldo Baroni (“Baroni”), a Hispanic man.
(Id. at ¶J 208.)
J.
Plaintiff’s Allegations of Retaliation and Discrimination
Plaintiff feels that his termination was in retaliation for his having contacted the FRA
about the BR-400, and his having expressed concern about race discrimination to DeCola. (Id. at
¶J 209, 211- 12.) Plaintiff has, nevertheless, acknowledged that DeCola has never made any
comments to him that he felt were racially discriminatory. (Id. at 214.)
¶
was the ultimate decision maker. Plaintiff’s reliance on Defendants’ initial response to interrogatories is misplaced
because the only plausible inference that any reasonable jury may draw from the record is that DeCola, Leland, and
Parsons’ involvement in the decision to terminate Plaintiff was limited to their participation in the disciplinary
hearing. Accordingly, based on the record before it, this Court considers the fact that Wigod was the ultimate
decision maker with respect Plaintiff’s termination to be undisputed.
13
In addition to the exchange with Tidd on March 14, 2011, Plaintiff had one other
exchange with a N.J. Transit Employee during which he felt discriminated against on account of
his race. Specifically, Plaintiff once had a conversation with Parsons during which Plaintiff
expressed a concern that people did not like him. (Id. at ¶ 216.) Parsons’ response was, “well,
people don’t like you but.
.
.
people don’t like me either.” (Id. at ¶ 217, citing Lichtenstein
Cert., Ex. B at 154:8-14.) Plaintiff felt that Parson’s comment was racially discriminatory, yet
did not complain to anyone. (Id. at ¶J 220-21.) During his deposition, Parsons acknowledged
saying this, and explained that the point he was trying to convey to Plaintiff was that “he had to
learn to work with people,” regardless of whether they liked him or not. (Id. at 218, citing
¶
Lichtenstein Cert., Ex. B at 15-17.)
According to Plaintiff, N.J. Transit desires to have only white people from Pennsylvania
operate the 801 machine. (Id. at ¶ 223; see also P1. Resp. SUMF at 223.) Plaintiff bases this
¶
belief on his having seen only white people running the 801 machine, and comments from co
workers who have suggested that only white people from Pennsylvania can operate this machine.
(Id. at224.)
As of March 17, 2011, there were three Class I operators in surfacing gang A, one black
Class II operator and one black Trackman. (Id. at ¶ 232.) The salary of all Class I operators is
the same, regardless of the machine operated (with the exception of one specialized machine, the
track geometry car). (Id. at ¶ 233.) The rate of pay for all employees is established by the CBA.
II.
PROCEDURAL BACKGROUND
Plaintiff filed his initial complaint on March 13, 2012, and a second amended complaint
on November 21, 2012. In his second amended complaint, Plaintiff asserts the following causes
of action against all Defendants: (1) race discrimination and retaliation under 42 U.S.C.
14
§
1983
and 1981; (2) race discrimination and retaliation under the New Jersey Law Against
Discrimination (“NJLAD”), N.J.S.A. 10:5-I et seq.; and (3) retaliatory termination under the
Conscientious Employee Protect Act (“CEPA”), N.J.S.A. 34:19-1 et seq. Additionally, Plaintiff
appears to assert an “aiding and abetting” claim against the Individual Defendants under the
NJLAD and §sS 1981 and 1983, although such a claim is not specifically pled as a separate cause
of action. Finally, Plaintiff’s complaint seeks punitive damages against Defendants.
Defendants filed a motion for summary judgment on August 23, 2013. Plaintiff filed an
opposition brief on September 23, 2013. In his opposition brief, Plaintiff states that he is
withdrawing his CEPA claim against all Defendants, and his
§ 1983 claim against N.J. Transit.
(See Def. Oppn. Br. at 4 n.2.) The Court, therefore, will dismiss these claims with prejudice and
will not consider whether summary judgment should be granted as to these claims.
III.
LEGAL STANDARD
“Summary judgment should be granted only ‘if the pleadings, the discovery 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.” Bender v. Tp. of
Monroe, 289 F. Appx. 526, 526-27 (3d Cir. 2008) (quoting Fed. R. Civ. P. 56(c)).
On a
summary judgment motion, the moving party must first show that there is no genuine issue of
material fact. Celotex Corp.
V.
Cartrett, 477 U.S. 317, 323 (1986). The burden then shifts to the
non-moving party to present evidence that a genuine issue of material fact compels a trial. Id. at
324. The non-moving party must offer specific facts that establish a genuine issue of material
fact; the non-moving party may not simply rely on unsupported assertions, bare allegations, or
speculation. See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999).
The Court must consider all facts presented and the reasonable inferences drawn from them in
15
the light most favorable to the non-moving party. See Pa. Coal Ass ‘ii v. Babbitt, 63 F.3d 231,
236 (3d Cir. 1995).
ZV.
DISCUSSION
Determining whether Defendants are entitled to summary judgment requires this Court,
as a threshold matter, to decide whether there are sufficient facts in the record from which a
reasonable jury may: (1) find that Defendants retaliated against Plaintiff because the latter
complained of racial discrimination and (2) find that Defendants terminated Plaintiff’s
employment because of his race.
A.
Whether Summary Judgment Should be Granted as to Plaintiffs Retaliation
ClaimsundertheNJLADand 1981 and 1983
The burden-shifting framework the U.S. Supreme Court set forth in McDonnell Douglas
v. Green, 411 U.S. 792 (1973) applies to Plaintiffs retaliation claims under the NJLAD and
§
1983 and 1981. See, e.g., Chen v. Newark Pub. Schools, 2009 U.S. Dist. LEXIS 103746, at *5
n.2 (D.N.J. Nov. 6, 2009) (observing that employment discrimination claims under the NJLAD
and
§ 1981 and 1983 are analyzed under the McDonnell Douglas burden-shifting framework)
(citing McKenna v. Pacific Rail Service, 32 F.3d 820, 825 n.3 (3d Cir. 1994)). Under this
framework, Plaintiff bears the initial burden of establishing a prima facie case of retaliation. See
McDonnell Douglas, 411 U.S. at 802. If Plaintiff satisfies this burden, the burden then shifts to
Defendants to “articulate some legitimate, nondiscriminatory reason” for their action. Id. If
Defendants articulate a legitimate reason for their action, Plaintiff must then show that
Defendants’ proffered reasons were merely a pretext for unlawful retaliation. See id. at 804-05.
To do this, Plaintiff “must point to some evidence.
.
.
from which a factfinder could reasonably
either (I) 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
16
the employer’s action.” See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (applying
McDonnell Douglas framework in employment discrimination case brought under Title VII).
To establish a prima facie case on his retaliation claims, Plaintiff must establish that: (1)
he participated in protected activity; (2) his employer took an adverse employment action after or
contemporaneous with the protected activity; and (3) there is a causal link between the protect
ed
activity and the employer’s adverse action. See, e.g., Kant v. Seton Hall Univ., 289 Fed. Appx.
564, 567 (3d Cir. Aug. 27, 2008) (noting that these are the three elements that a plaintiff must
satisfy “[tb
advance a prima facie case of retaliation under section 1981, Title VII, or the
NJLAD”) (citing Abramson v. William Paterson College ofNew Jersey, 260 F.3d 265, 286
(3d
Cir. 2001)).
The crux of Defendants’ arguments in support of summary judgment as to Plaintiff’s
retaliation claims is that the record fails to suggest either that Plaintiff engaged in protected
activity or that there is a causal link between Plaintiff’s purportedly protected activity and
the
termination of his employment.
Plaintiff, on the other hand, argues that he did engage in protected activity by
complaining about racial discrimination to DeCola. Plaintiff further argues that the
following
facts suffice to raise genuine questions of material fact as to whether there is a
causal link
between his complaint to DeCola and the termination of his employment: (1) the
short timespan
between his complaint to DeCola and his termination; (2) the fact that Defendants antagonized
him by failing to provide a qualified operator for the 801 machine; and (3) Parsons, DeCola,
and
Tidd—as opposed to Wigod—were the true decision makers with respect
to Plaintiff’s
termination. (See Def. Oppn. Br. at 9-14.)
Even if this Court were to assume that Plaintiff’s question to DeCola amounted
to a
17
complaint of racial discrimination, it is apparent that the facts to which Plaintiff points
are
insufficient to raise a triable question as to whether there is a causal link between his puipor
ted
complaint to DeCola and the termination of his employment.
First, “it is well settled that the close temporal proximity between a protected act and an
adverse employment action, alone, is insufficient to raise an inference of retaliation.” Carvai
ho
Aircrqft Serv. Int’l, Inc., 2013 U.S. Dist. LEXIS 145279, at *29..*30 (D.N.J. Oct. 8, 2013)
(citations omitted); see also Marra v. Phila. Hous. Auth., 497 F.3d 286, 301 (3d Cir. 1991)
(“It is
important to emphasize that it is causation, not temporal proximity itself, that is an element of
a
plaintiffs prima facie case, and temporal proximity merely provides an evidentiary basis
from
which an inference can be drawn.”) (quoting Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173,
178 (3d Cir. 1997)).
Plaintiff relies on Jalil v. Avdel Corp., 873 F.2d 701 (3d Cir. 1989) for the proposition
that “[t]emporal proximity between the protected activity and the adverse employment action
is
sufficient to establish a causal link necessary to defeat” a motion for summary judgment.
(Def.
Oppn. Br. at 12.) In Jalil, an employer terminated the plaintiff two days after the plaintiff had
filed a complaint of racial discrimination with the Equal Employment Opportunity Comm
ission
(“EEOC”). 873 F.2d at 708. The employer’s proffered reason for terminating the plainti
ff was
“gross insubordination” on account of the plaintiff having resisted instructions to remov a
e radio
headset while at work. Id. at 703. The Third Circuit held that the plaintiff had demon
strated a
causal link between his protected activity of filing the EEOC complaint and his termination
“by
the circumstance that the discharge followed rapidly, only two days later, upon [the employ
er’s]
receipt of [the plaintiffs] EEOC claim,” and noted that there were issues of materi
al fact as to
whether the employer’s proffered reason for terminating the plaintiff was merely pretext
ual. Id.
18
Notably, the Third Circuit based its decision on “[a]n objective review of the evidence” before it,
which convinced it that the plaintiff “had called into question the employer’s true motivation in
discharging him.” Id. at 708.
Although the Court does not dispute that the timing of an employee’s termination may be
suggestive of retaliation when accounting for the totality of the facts in the record, the tempo
ral
proximity between a protected act and a termination of employment is not, alone, prima facie
evidence of retaliation. See, e.g., Marra, 497 F .3 d at 301; see also Young v. Hobart West
Grp.,
385 N.J. Super. 448, 467 (App. Div. 2005) (“[T]he mere, fact that [an] adverse employment
action occurs after [the protected activity] will ordinarily be insufficient to satisfy the plainti
ffs
burden of demonstrating a causal link between the two.”). This is particularly so in this case,
since there was an unprotected intervening act between Plaintiffs purported complaint and
his
termination, namely, the fact that Plaintiff left the 801 machine unattended when it began rolling
without anyone operating it. See, e.g., Reap v. Cont’l Cas. Co., No. 99-1239, 2002 U.S.
Dist.
LEXIS 13845, at *69 (D.N.J. June 28, 2002) (“Even if a causal connection is assumed,
however,
intervening unprotected conduct may sever the putative causal connection betwee
n protected
activity and an adverse action.”).
2
Second, Plaintiffs claim that Defendant “antagonized” him by failing to provid
e a
qualified operator for the 801 machine is insufficient to raise a triable issue of
material fact.
Notably, Defendants also failed to provide a qualified operator for the 801 machin
e on the days
2
The Court is mindful that Plaintiff claims that DeCola sabotaged the 801 machine
by releasing the brake. During
the disciplinary hearing, however, Wigod credited DeCola’s assertion that he did not
release the brake on the 801
machine over Plaintiff’s claim that he did. Plaintiff acknowledges that it was Wigod’s
right to make credibility
determinations. Although Wigod may have been wrong to credit DeCola’s version
of events over that of Plaintiff’s,
being a bad judge of credibility does not amount to retaliation. See, e.g., Hood v.
Pfizer, Inc., 2009 U.S. App.
LEXIS 8062, at *10 (3d Cir. Apr. 16, 2009) (“It may not have been wise, shrewd,
prudent or. competent for
[employer] to credit a co-worker’s word over [the plaintiff’s], but this merely demonstrates
that [the employer] may
have been a bad judge of credibility, not that it violated the NJLAD.”) (citing
Fuentes v. Perskie, 32 F.3d 759, 764
(3d Cir. 1994)),
.
19
.
preceding his purported complaint.
Thus, Defendants’ failure to provide Plaintiff with a
qualified operator for the 801 machine cannot support an inference of retaliation.
Third, although Parsons, DeCola, and Tidd participated in the disciplinary hearing which
resulted in Plaintiffs termination, these individuals did not have actual decision makin
g
authority as to what discipline would be imposed. The record reflects that only Wigod had
authority to terminate Plaintiffs employment, and in fact made that decision. Further, nothin
g in
the record suggests that Wigod was even aware that Plaintiff had made a complaint of racial
discrimination.
Thus, it is not apparent to the Court how Wigod’s decision to terminate
Plaintiffs employment could amount to retaliation.
In light of Plaintiffs failure to establish a causal link between his purported complaint
about racial discrimination and his termination, the Court will grant summary judgment
as to
Plaintiffs retaliation claims.
B.
Race Discrimination Claims under the NJLAD and
1981 and 1983
To establish a prima facie case of race discrimination (i.e., discriminatory discharge)
under the NJLAD or
§ 1981 and 1983, Plaintiff must demonstrate: (1) that he is in a protected
class; (2) that he is qualified for the position held; (3) that he suffered an adverse emplo
yment
action; and (4) either that the employer sought similarly qualified persons who are not
members
of his protected class or that the circumstances surrounding the adverse employment
action
support an inference of discrimination. See, e.g., Victor v. State, 203 N.J. 383, 409
(2010);
Embry v. Fleckenstein, No. 95-5897, 1996 U.S. Dist. LEXIS 17157, at *23 (E.D.
Pa. Nov. 20,
1996) (citing Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 243-54 (1983)
); Hatcher v.
Family Dollar Store, No. 08-1444, 2010 U.S. Dist. LEXIS 29211, at *38 (D.N.J
. Mar. 26, 2010)
(citation omitted).
20
Courts employ the McDonnell Douglas burden shifting framework in analyzing
discriminatory discharge claims. See, e.g., Photis v. Sears Holding Corp., No. 11-679
9, 2013
U.S. Dist. LEXIS 104152, at *18 (D.N.J. July 25, 2013) (observing that New Jersey courts
apply
the McDonnell Douglas framework “to assess discriminatory discharge claims under NJLAD
”)
(citations omitted); see also Carroll v. Tompkins Rubber C’o., No. 92-6457, 1993 U.S.
Dist.
LEXIS 7673, at *11 (E.D. Pa. June 8, 1993) (applying McDonnell Douglas analysis in
§ 1981
discriminatory discharge claim).
Here, the parties do not specifically dispute that Plaintiff satisfies the first, second, and
third elements of a race discrimination claim. At issue is whether Plaintiff has set forth suffici
ent
facts from which a jury may find that he satisfies the fourth element. In arguing that he has,
Plaintiff relies on the fact that he “was replaced by an individual outside of his protected class,
Aldo Baroni, who is Hispanic.” (Def. Oppn. Br. at 18.) The record also suggests that Plainti
ffs
race discrimination claim is largely premised on his belief that N.J. Transit wants only white
people to operate the 801 machine based on his having seen only white co-workers operati
ng the
801 machine, and comments from co-workers who have suggested that only white people from
Pennsylvania can operate this machine. (See Def. Resp. SUMF at 223.)
¶
Plaintiffs beliefs and the speculation of Plaintiffs co-workers are insufficient to raise
genuine questions of material fact with respect to Plaintiffs race discrimination claim.
See, e.g.,
Ridgewood Bd. ofEduc., 172 F.3d at 252. More importantly, Plaintiff largely relies
on the same
failed factual arguments he advanced in support of his retaliation claim to sustain
his position
that his employment was terminated on account of his race, (see Def. Oppn. Br. at 18),
and has
failed to specifically rebut Wigod’s articulated legitimate reasons for terminating him.
To survive summary judgment, Plaintiff must set forth sufficient evidence that would
21
allow a reasonable jury to find that the given reasons for his termination “[were] not the true
reason for the employment decision, and that race was.” See St. Mary Honor Ctr. v. Hicks, 509
U.s. 502, 507-08 (1993). Nothing in the record suggests that Wigod’s decision to termin
ate
Plaintiffs employment was based on race. Accordingly, the Court will grant summary judgm
ent
as to Plaintiffs race discrimination claim.
C.
Aiding and Abetting Claims against the Individual Defendants under the NJLAD
and
1981 and 1983
Having determined that Defendants are entitled to summary judgment as to Plaintiffs
retaliation and race discrimination claims, the Court could grant Defendants’ summary judgm
ent
motion without further analysis. For the sake of completeness, however, the Court will addres
s
the extent to which summary judgment is appropriate as to any aiding and abetting claim agains
t
the Individual Defendants.
In his second amended complaint, Plaintiff asserts that Tidd, Parsons, and DeCola are
liable for retaliation and race discrimination because they “jointly terminated Plainti
ff for
pretextual reasons because of his race and/or complaints of discriminatory treatm
ent in the
workplace,” and because they “aided and abetted the discriminatory treatment
of Plaintiff and
participated in the retaliatory termination of Plaintiff.” (See Second Am. Compi at
.
¶J 31, 35.)
As discussed above, the record does not support Plaintiffs assertion that any of
these individuals
actually “terminated” Plaintiff. Further, Plaintiffs failure to specifically plead
a cause of action
for “aiding and abetting” would compel this Court to dismiss any such claim. See,
e.g., White v.
Cleary, No. 09-4324, 2012 U.S. Dist. LEXIS 36694, at *15 (D.N.J. Mar. 19, 2012)
(dismissing
NJLAD claim for aiding and abetting at the summary judgment stage becaus
e plaintiff failed to
specifically plead such a claim).
Nevertheless, even if an “aiding and abetting” claim against the Individual Defend
ants
22
had been properly pled, the Court would still grant summary judgment in Defendants’ favor.
As to any aiding and abetting claim brought against the Individual Defendants under the
NJLAD, said claim fails because “[ijt is only possible to find an individual liable for aiding
and
abetting under the [NJLAD]
.
.
.
when the employer may be held liable under the [NJLAD].” See
Roman v. Waste Mgmt. ofNJ., No. 10-4337, 2011 U.S. Dist. LEXIS 50910, at *13
(D.N.J. May
12, 2013) (citations omitted). In this case, Plaintiffs employer is N.J. Transit, not
the Individual
Defendants.
See, e.g., Cicchetti v. Morris Cnty. Sheriff’s Office, 194 N.J. 563, 594 (2008)
(“{W]e have recently held that the plain meaning of the definition of employer
in the [NJLAD]
does not include a supervisor.”).
As this Court has determined that summary judgment is
appropriate as to Plaintiffs NJLAD race discrimination and retaliation
claims against all
Defendants, the Individual Defendants cannot—as a matter of law—be liable
for aiding and
abetting.
Similarly, liability cannot extend to the Individual Defendants on a theory of
aiding and
abetting N.J. Transit under
§ 1981 and 1983 because N.J. Transit cannot be held liable under
either statute. See, e.g., Failla v. City of Passaic, 146 F.3d 149, 159 (3d
Cir. 1998) (noting that
“it is fundamental to aiding and abetting liability that the aider and abettor
acted in relation to a
principal, here, the employer.”).
In relevant part,
States the.
.
.
§ 1981 guarantees to “[ajil persons within the jurisdiction of the United
same right in every State and Territory.
.
.
to the full and equal benefit of all laws
and proceedings for the security of persons and property as is enjoye
d by white citizens.” 42
U.S.C.
§ 1981(a). Subsection (c) of this statute provides that “[t]he rights protected by [ 1981]
are protected against impairment by nongovernmental discrimination
and impairment under
color of State law.” 42 U.S.C.
§ 1981(c).
23
“[B)ecause Congress [did not) explicitly create[] a remedy against state actors under
1981(c)
.
.
.
‘the express cause of action for damages created by
federal remedy for violation of the rights guaranteed in
§
§ 1983 constitutes the exclusive
§ 1981 by state governmental units.”
McGovern v. City of Philadelphia, 554 F.3d 114, 121 (3d Cir. 2009) (quoting Jett v. Dallas
Independent School Dist., 491 U.S. 701, 733 (1989)).
Here, there can be no dispute that N.J. Transit is a state governmental unit. See, e.g.,
Johnson v. N.J. Transit Rail Operations, Inc., No. 87-173, 1988 U.S. Dist. LEXIS 3451,
at *5
(D.N.J. Mar. 15, 1988) (observing that “New Jersey Transit is by statute a State instrum
entality
performing an essential government function.”). Thus, only
§ 1983 can potentially provide a
federal remedy for N.J. Transit’s alleged violations of* 1981. See McGovern, 554 F.3d 121.
at
To establish liability against N.J. Transit under
§ 1983, Plaintiff must show that N.J.
Transit is a “person” within the meaning of the statute. See, e.g., West v. Atkins, 487
U.S. 42, 48
(1988) (“To state a claim under
§ 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged depriv
ation was
committed by a person acting under color of state law.”).
It is well settled that states and extensions thereof are not “persons” within the meanin
g
of 1983. Willy. Mich. Dep t ofState Police, 491 U.S. 58,71(1989). As “an
instrumentality of
the State exercising public and essential governmental functions,” see N.J.S.A
. 27:25-4, N.J.
Transit is an “extension of the State of New Jersey.” See Geod Corp.
V.
N.J. Transit Corp., 678
F. Supp. 2d 276, 287-88 (D.N.J. 2009). Accordingly, N.J. Transit is not a
person within the
meaning of § 1983, and thus cannot be held liable under this statute. See
Geod, 678 F. Supp. 2d
at 288 (holding that N.J. Transit “cannot be held liable pursuant to 42 U.S.C.
For the purpose of its analysis, the Court will assume that Plaintiff could
pursue his
Transit in spite of his having agreed to withdraw said claim.
24
§ 1983” because it
§ 1983 claim against N.J.
is “not a ‘person” within the meaning of that statute); see also Mancini v. N.J. Tranit Corp,
No.
12-5753, 2013 U.S. Dist. LEXIS 79358, at *5..*6 (D.N.J. June 5, 2013) (dismissing
§ 1983 claim
against N.J. Transit because N.J. Transit is not a ‘person’ within the meaning of
§ 1983.).
As N.J. Transit cannot be held liable for race discrimination or retaliation under
§ 1981
or 1983, the Individual Defendants cannot be held liable for aiding and abettin
g N.J. Transit in
retaliating or racially discriminating against Plaintiff. See, e.g., Failla, 146 F.3d at 59•4
1
D.
Punitive Damages
As this Court has determined that Defendants are entitled to summary judgment as to
all
of Plaintiff’s substantive claims, there is no basis for an award of punitive damag
es. See, e.g.,
Krueger Assocs. v. Am. Dist. Tel. Co., 247 F.3d 61, 67 (3d Cir. 2001) (observ
ing that “the
absence of any viable substantive claim
.
.
.
deprives [the plaintiff’s] request for punitive
damages of any underpinning [claim].”); see also Zugarek v. S. Tioga Sch. Dist., 214
F. Supp. 2d
468, 482 (M.D. Pa. 2002) (“Given that plaintiff’s substantive
[ 1983] claims against defendants
will be dismissed, and in light of the fact that a punitive damages claim cannot
stand independent
of an underlying substantive claim, plaintiff’s punitive damages claim will be dismis
sed.”).
V.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRAN
TED.
To the extent that Plaintiff argues that DeCola, Parsons, and Tidd aided and
abetted each other, as opposed to N.J.
Transit, in a “scheme to terminate [Plaintiff’s] employment,” (see Def. Oppn.
Br. at 20), that argument fails because
nothrng in the record suggests that any such scheme existed. Indeed, there is
no evidence to suggest that either
Parsons or Tidd was aware of Plaintiff’s purported complaint to DeCola,
or that Parsons or Tidd sought to terminate
Plaintiff’s employment because of any such complaint or his race. Additionally
nothing in the record, aside from
Plaintiff’s speculation, suggests that DeCola would have sabotaged the 801
machine because of a retaliatory or
discriminatory motive. Under § 1981, individual liability requires a showing
that a defendant was “personally
involved in the discrimination.
intentionally caused the [employer] to infringe on [the plaintiff’s] Section
1981 rights, or. authorized, directed, or participated in the alleged discriminato
ry conduct.” See Al-Khazraji v.
Saint Francis College, 784 F.2d 505, 518 (3d Cir. 1986) (emphasis added).
Having determined that there are no
facts in the record to suggest that Plaintiff’s termination was either a retaliatory
act or the product of racial
discrimination, this Court sees no basis for sustaining any aiding and abetting
claim against the Individual
Defendants, even if such a claim were premised on the theory that the Individual
Defendants aided and abetted each
other.
.
.
.
.
25
Plaintiffs claims under the NJLAD,
§
1981 and 1983, and the CEPA are dismissed with
prejudice. An appropriate Order follows.
Dated:
/
of October, 2013.
L. LINARES
DISTRICT JUDGE
26
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