RODRIGUEZ v. AUTO ZONE

Filing 51

OPINION. Signed by Judge Faith S. Hochberg on 1/14/14. (DD, )

NOT FOR PUBLICATION

CLOSED

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
:
:
:
Plaintiff,
:
:
v.
:
:
AUTO ZONE,
:
:
Defendant.
:
__________________________________________ :
ALEX RODRIGUEZ,

Hon. Faith S. Hochberg, U.S.D.J.
Civil No. 12-3916 (FSH) (MAH)
OPINION
Date: January 14, 2014

HOCHBERG, District Judge:
This matter comes before the Court upon Defendant AutoZone’s (“AutoZone” or
“Defendant”) motion for summary judgment (Dkt. No. 38) and Plaintiff Alex Rodriguez’s cross
motion for spoliation (Dkt. No. 42). 1 Plaintiff contends that he was discriminated against on the
basis of his national origin in violation of Title VII, was subject to a hostile work environment in
violation of Title VII, was subject to retaliation in violation of Title VII, and that Defendant’s
conduct also violated the New Jersey Law Against Discrimination. Plaintiff also contends that
Defendant has destroyed documents such that an adverse inference is merited. The Court has
reviewed the submissions of the parties and considered the motion on the papers in accordance
with Federal Rule of Civil Procedure 78.

1

The Court also considered Plaintiff’s sur-reply. (Dkt. No. 48.)
1

I.

BACKGROUND 2
On April 28, 2010, Plaintiff applied to work at AutoZone as a full-time parts sales

manager (“PSM”). (DS ¶ 1; PR ¶ 1.) Following his application, Plaintiff was hired as a PSM for
Store 1673. (DS ¶ 3; PR ¶ 3.) Plaintiff was terminated on March 15, 2011. (PS ¶ 75; DR ¶ 75.)
On June 26, 2012, Plaintiff filed suit against AutoZone alleging he was discriminated and
retaliated against by his supervisors. (Dkt. No. 1, Complaint.) Plaintiff was born in New York
and is of Cuban descent. (DS ¶ 2; PR ¶ 2.)
A. Plaintiff’s History with AutoZone
Edinson Manjarres was the district manager for Store 1673. 3 (DS ¶ 4; PR ¶ 4.) Plaintiff
did not have any problems with Mr. Manjarres while at Store 1673. (DS ¶ 6; PR ¶ 6.) Soon after
being hired, Mr. Manjarres recommended that Plaintiff be promoted to store manager. (DS ¶ 17;
PR ¶ 17.) Plaintiff was pleased about the promotion as it came with a substantial pay increase,
and he understood that Mr. Manjarres was instrumental in securing the pay increase for him.
(Id.) Plaintiff moved to Store 1674 as a store manager. (DS ¶ 18; PR ¶ 18.) Store 1674 had
more problems and higher “shrink” 4 than Store 1673. (Id.) While Plaintiff wanted to stay at
Store 1673, he agreed to move to Store 1674 when he was offered more money. (Id.)
Store 1674 continued to be a high shrink and high risk store throughout the time Plaintiff
managed it. (DS ¶ 19; PR ¶ 19.) Plaintiff knew that AutoZone took shrink very seriously and
2

Unless otherwise noted, these facts come from the parties’ statements of undisputed facts. DS
refers to Defendant’s statement of undisputed facts, PR refers to Plaintiff’s response to
Defendant’s statement of undisputed facts, PS refers to Plaintiff’s statement of undisputed facts,
and DR refers to Defendant’s response to Plaintiff’s statement of undisputed facts.
3

Defendant also notes that Plaintiff was aware that Mr. Manjarres was from Colombia. (DS ¶ 7;
PR ¶ 7.)
4

“Shrink” refers to inventory shrinkage. This is the loss of products between the point of
manufacture or purchase from supplier and the point of sale. Shrink may consist of things like
product damage, theft, or administrative errors.
2

that part of his job was to prevent and detect shrink (as well as keeping shrink as low as
possible). (DS ¶ 20; PR ¶ 20.)
B. Plaintiff’s Allegations of Discrimination
Plaintiff alleges that Mr. Manjarres first called him “Castro” in October of 2010. (DS ¶
21; PR ¶ 21.) From October 2010 until Plaintiff’s termination, Mr. Manjarres called him
“Castro” or “Cuba” on several occasions—possibly over 10 times. (DS ¶ 22; PR ¶ 22.) Plaintiff
also alleges that Mr. Manjarres said that he was going to “deport” Plaintiff three or four times.
(DS ¶ 23; PR ¶ 23.) Plaintiff understood that Mr. Manjarres did not have the authority to
actually deport him. (Id.) Plaintiff also alleges that another employee heard Mr. Manjarres refer
to Cubans as “no good stealers” who are “only good for talking shit.” (PS ¶ 20.) Plaintiff also
alleges that another employee saw that the name “Castro” had been written beneath Plaintiff’s
name on a whiteboard at the store and remained up for “quite some time.” (PS ¶ 19.) During
this time period, Mr. Manjarres was visiting Store 1674 approximately once every two weeks,
and Plaintiff asserts that these comments occurred in nearly half of his interactions with Mr.
Manjarres. Pl.’s Br. at 1; (PS ¶ 17; DR ¶ 17).
C. Plaintiff’s Allegations of Retaliation 5
In 2001, William Smith was a regional manager for AutoZone, and his territory included
Store 1674. (DS ¶ 5; PR ¶ 5.) As regional manager, Mr. Smith was responsible for overseeing
the operation of the region (between 90 and 110 stores), including sales and profits, inventory,
personnel training, development, and implementation of AutoZone’s company objectives. (Id.)
He was also in charge of deciding whether to fire employees. (Id.)

5

The Court notes that both parties’ statements of facts and responses are lacking. In some cases,
Plaintiff included legal arguments rather than facts in his statements of fact, and in some cases,
Defendant failed to properly support its denials with relevant citations to the record.
3

On January 11, 2011, Doug Haley, a loss prevention manager, visited Store 1674 to
conduct a loss prevention audit because Store 1674 suffered from high shrink. (DS ¶ 26; PR ¶
26.) Plaintiff was concerned about the high shrink results and the loss prevention audit. (Id.)
Plaintiff failed this audit, which he admits went poorly, and received a “corrective action review”
form as a written warning for his failure to follow instructions and unsatisfactory job
performance. (DS ¶ 27; PR ¶ 27.) Plaintiff scored a 42 percent on the audit; any score below 85
percent is considered failing. (DS ¶ 28; PR ¶ 28.)
Mr. Haley also interviewed Plaintiff during the audit. (DS ¶ 29; PR ¶ 29.) During this
interview, Plaintiff admitted that the store’s “shrink” was high both before and after he took over
as store manager. (DS ¶ 30; PR ¶ 30.) During the interview, Plaintiff admitted the following:
Q. Have you ever taken managers dispose of merchandise 6 from
AutoZone Store 1674 Hackensack NJ for your own use?
A. Yes.
Q. What items have you taken that where [sic] manager dispose of
merchandise?
A. A set of fog lights – couple sockets – a tire spry that was
broken.
Q. Did you have permission to take these items?
A. No.
[. . .]
Q. Do you realize what you did is against company policy?
A. Yes.
(DS ¶ 31; PR ¶ 31.) Plaintiff contends that he first learned that he needed permission to take
“manager dispose of” merchandise during the January 11, 2011 interview. (PR ¶ 31.) Plaintiff
6

“Manager dispose of” merchandise is damaged merchandise that has been returned by a
customer to AutoZone. (DS ¶ 32; PR ¶32.)
4

argues that a prior manager informed him these items were destined for the trash. (Id.) The
parties dispute whether or not this merchandise is always thrown away. (DS ¶ 34; PR ¶ 34.)
Plaintiff understood that failure to follow AutoZone’s policies or removing items from the store
without payment could result in termination. (DS ¶ 35; PR ¶ 35.) 7 Between January 25, 2011
and January 27, 2011, five AutoZone employees provided written statements alleging that
Plaintiff would take energy drinks from the store without paying for them. (DS ¶¶ 38-42.)
Plaintiff denies that he ever took these drinks without payment. (PR ¶¶ 38-42.) Several other
AutoZone employees of varying races and nationalities have been terminated for removing
merchandise from the store without authorization. (DS ¶¶ 68-70; PR ¶¶ 68-70.) Mr. Smith made
the decision to discharge these former AutoZone employees. (DS ¶ 71; PR ¶ 71.)
On January 12, 2011 at 4:30 P.M., one day after the loss prevention audit, Plaintiff called
Richard Greaves, a regional human resources manager and requested Marie Saball’s phone
number. (DS ¶¶ 16, 37; PR ¶¶ 16, 37.) Ms. Saball was the divisional human resources manager
for AutoZone at the time. (DS ¶ 15; PR ¶ 15.) On the same day, Mr. Greaves sent Ms. Saball an
email stating that Plaintiff “wanted to talk about something in his district, and wanted to discuss
with someone else.” (PS ¶ 33; DR ¶ 33.) Plaintiff attempted to contact Ms. Saball over the next
few weeks. (PS ¶¶ 36-38.) 8 Plaintiff also alleges that his fiancée called AutoZone and Ms.
Saball to voice Plaintiff’s complaints about Mr. Manjarres. (PS ¶¶ 39-41.) Plaintiff alleges that
7

Plaintiff admits in part and denies in part this statement of fact. Specifically, Plaintiff does not
deny the underlying testimony and reiterates that he did not know that taking “manager dispose
of” merchandise out of the store could result in termination when he removed the items. (PR ¶
35.)
8

Defendant states that the Court should not consider Plaintiff’s or Darlene Ciprian’s declarations
because they are undated. (PR ¶¶ 36-42.) The cases Defendant cites do not support its
proposition. Moreover, the Court notes that the declarations are under the penalty of perjury
even though they are undated. In any event, Plaintiff refiled these declarations with dates on
November 19, 2013. (Dkt. No. 48.) The Court will consider these declarations.
5

he eventually spoke with Ms. Saball on February 15, 2011. (PS ¶ 53.) Plaintiff contends that
Ms. Saball destroyed her notes recording the circumstances and timing of Plaintiff’s complaints.
(PS ¶¶ 54-56.) Defendant argues that there was nothing nefarious about Ms. Saball’s practice of
discarding her notes and that any information in her notes would have been captured by the
statements and documentation retained by the regional office. (DR ¶¶ 54-56.)
Also on February 15, 2011, Ms. Saball formally made the recommendation to terminate
Plaintiff. (DS ¶ 44; PR ¶ 44.) The same email listed three other employees who were terminated
on February 1, 2011. (PS ¶ 44.) The parties dispute whether or not Plaintiff and his fiancée
alerted Ms. Saball to his complaints of discrimination before or after Ms. Saball’s email
recommending termination. (E.g., PS ¶ 40; DR ¶ 40.) Defendant alleges that Ms. Saball
recommended termination based on the results of the loss prevention audit as well as the
statements from other AutoZone employees regarding Plaintiff’s alleged theft of energy drinks.
(DS ¶ 44.) On the other hand, Plaintiff alleges that Ms. Saball recommended termination due to
his complaints of discrimination and harassment regarding Mr. Manjarres. (PR ¶ 44.) But
Plaintiff did testify that Ms. Saball’s “acts and conduct” during their interactions never caused
him to believe that she wanted to discriminate or retaliate against him. (DS ¶ 47; PR ¶ 47.) It is
undisputed that Mr. Smith and Ms. Saball agreed that Plaintiff should be terminated, but placed
that termination on hold to investigate Plaintiff’s concern that he was being “set up” by Mr.
Manjarres. (DS ¶ 48; PR ¶ 48.)
On February 17, 2011, Mr. Greaves started an investigation into Plaintiff’s complaints by
interviewing Plaintiff, as well as other witnesses. (DS ¶¶ 49-50; PR ¶¶ 49-50.) On February 28,
2011, Plaintiff was suspended without pay pending the outcome of the investigation. (DS ¶ 52;
PR ¶ 52.) On March 3, 2011, Plaintiff informed Ms. Saball that he intended to file a complaint

6

with the Equal Opportunity and Employment Commission. (PS ¶ 73; DR ¶ 73.) Defendant
alleges that in March 2011, Ms. Saball found no merit to Plaintiff’s allegations and reiterated her
recommendation to terminate Plaintiff based on his violation of the “manager dispose of”
merchandise policy and theft of energy drinks. (DS ¶ 56.) Mr. Smith agreed with Ms. Saball’s
recommendation and made the final decision to terminate Plaintiff. 9 (DS ¶ 57, 60; PR ¶ 57.)
Plaintiff was terminated on March 15, 2011. (PS ¶ 75; DR ¶ 75.)
II.

STANDARD
Pursuant to Federal Rule of Civil Procedure 56(c), a motion for summary judgment will

be granted if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other
words, “[s]ummary judgment may be granted only if there exists no genuine issue of material
fact that would permit a reasonable jury to find for the nonmoving party.” Miller v. Indiana
Hosp., 843 F.2d 139, 143 (3d Cir. 1988). All facts and inferences must be construed in the light
most favorable to the non-moving party. Peters v. Delaware River Port Auth., 16 F.3d 1346,
1349 (3d Cir. 1994). The judge’s function is not to weigh the evidence and determine the truth
of the matter, but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S.
9

Plaintiff denies that Mr. Smith was the person who decided to fire him. (PR ¶¶ 59-61.) But
Plaintiff fails to cite to any record evidence supporting this denial. Instead, Plaintiff cites to
Plaintiff’s Statement of Facts, ¶ 56, but ¶ 56 relates to Defendant’s alleged policies related to the
destruction of documents. This fact is deemed admitted. Fed. R. Civ. P. 56(c)(1); Fed. R. Civ.
P. 56(e); L. Civ. R. 56.1; see also Hyland v. Am. Gen. Life Companies, LLC, Civ. No. 06-6155,
2008 WL 4308219, n.1 (D.N.J. Sept. 17, 2008), aff’d sub nom. Hyland v. Am. Int’l Grp., 360 F.
App’x 365 (3d Cir. 2010); Gurvey v. Fixzit Nat. Install Servs., Inc., Civ. No. 06-1779, 2011 WL
1098994, *3 (D.N.J. Mar. 21, 2011) (“Absent evidence, a fact is not disputed simply because
Plaintiffs deny it in their papers.”). In any event, Plaintiff previously admitted Mr. Smith was
responsible for firings. (DS ¶ 5; PR ¶ 5.)
7

at 249. “Consequently, the court must ask whether, on the summary judgment record, reasonable
jurors could find facts that demonstrated, by a preponderance of the evidence, that the
nonmoving party is entitled to a verdict.” In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829,
860 (3d Cir. 1990).
The party seeking summary judgment always bears the initial burden of production.
Celotex Corp., 477 U.S. at 323. This burden requires the moving party to establish either that
there is no genuine issue of material fact and that the moving party must prevail as a matter of
law, or to demonstrate that the nonmoving party has not shown the requisite facts relating to an
essential element of an issue on which it bears the burden. Id. at 322-23. Once the party seeking
summary judgment has carried this initial burden, the burden shifts to the nonmoving party.
To avoid summary judgment, the nonmoving party must then demonstrate facts
supporting each element for which it bears the burden, and it must establish the existence of a
“genuine issue of material fact” justifying trial. Miller, 843 F.2d at 143; accord Celotex Corp.,
477 U.S. at 324. The nonmoving party “must do more than simply show that there is some
metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). “Where the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First
National Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). Further, summary
judgment may be granted if the nonmoving party’s “evidence is merely colorable or is not
significantly probative.” Anderson, 477 U.S. at 249-50.

8

III.

DISCUSSION
A. Plaintiff’s Title VII Retaliation Claim
Defendant moves for summary judgment with respect to Plaintiff’s Title VII retaliation

claim. Title VII of the Civil Rights Act of 1964 provides that “[i]t shall be an unlawful
employment practice for an employer to discriminate against any of his employees . . . because
he has opposed any practice made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3.
In a Title VII retaliation case, a plaintiff can show retaliation through either direct or
circumstantial evidence. Fasold v. Justice, 409 F.3d 178, 184 (3d Cir. 2005). When a plaintiff
presents circumstantial evidence, as opposed to direct evidence, in support of his or her claim,
“the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)” governs. White v. Planned Security Services, 480 F. App’x 115, 118 (3d Cir. 2012).
Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case for
unlawful retaliation by demonstrating that (1) he engaged in an activity protected by Title VII;
(2) the defendants took an adverse employment action against him; 10 and (3) there was a causal
connection between his participation in the protected activity and the adverse employment action
he suffered. Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995); Marra v. Phila. Hous.
Auth., 497 F.3d 286, 300 (3d Cir. 2007). If the plaintiff establishes a prima facie case of
unlawful retaliation, the burden then shifts to the employer to demonstrate a legitimate, nonretaliatory reason for the adverse employment action. Moore, 461 F.3d at 342. Finally, if the
10

“[A] plaintiff claiming retaliation under Title VII must show that a reasonable employee
would have found the alleged retaliatory actions materially adverse in that they well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.” Moore v.
City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006) (internal quotation marks omitted).
9

defendant establishes a legitimate reason for the adverse employment action, then the burden
shifts back to the plaintiff to show by a preponderance of the evidence that the employer’s
explanation is false and that retaliation was the real reason for the adverse employment action.11
Id.; Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir. 2003) (explaining that
plaintiff must show that “retaliatory animus played a role in the employer’s decision-making
process and that it had a determinative effect on the outcome of that process.” (internal
quotations omitted)).
AutoZone argues that it had a legitimate non-retaliatory reason for terminating Plaintiff,
to wit, his unauthorized removal of “manager dispose of” merchandise and employee reports of
his drinking of beverages without paying for them. (Def.’s Op. Br. at 22.) Defendant has met its
burden to provide a legitimate non-retaliatory reason for Plaintiff’s termination.
When faced with a legitimate, non-retaliatory reason for Defendant’s actions, the burden
of proof rests with Plaintiff to show that the proffered reasons are pretextual. Atkinson v.
LaFayette Coll., 460 F.3d 447, 455 (3d Cir. 2006). Plaintiff may survive summary judgment by
submitting evidence that “1) casts sufficient doubt upon each of the legitimate reasons proffered
by the defendant so that a factfinder could reasonably conclude that each reason was a
fabrication; or 2) allows the factfinder to infer that discrimination [or retaliation] was more likely
11

A plaintiff may show pretext by submitting evidence “from which a factfinder could
reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that
an invidious discriminatory reason was more likely than not a motivating or determinative cause
of the employer’s action.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.
1997). Under the first prong, the party must demonstrate “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons
for its actions that a reasonable fact finder could rationally find them unworthy of credence.” Id.
at 1108-09. Prong two has recently been modified by the Supreme Court. Plaintiff must now
show that “but for” Defendant’s retaliatory bias, he would not have experienced the adverse
employment action. Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013); see
also Coleman v. Jason Pharm., Civ. No. 12-11107, 2013 WL 5203559, *1 (5th Cir. Sept. 17,
2013).
10

than not a motivating or determinative cause of the adverse employment action.” 12 Fuentes v.
Perskie, 32 F.3d 759, 762 (3d Cir. 1994).

“To discredit the employer’s proffered reason,

however, the plaintiff cannot simply show that the employer’s decision was wrong or mistaken,
since the factual dispute at issue is whether discriminatory animus motivated the employer, not
whether the employer is wise, shrewd, prudent, or competent.” Id. at 765. “[F]ederal courts are
not arbitral boards ruling on the strength of ‘cause’ for discharge. The question is not whether
the employer made the best, or even a sound, business decision; it is whether the real reason is
[discrimination or retaliation].” Keller, 130 F.3d at 1109 (citing Carson v. Bethlehem Steel
Corp., 82 F.3d 157, 159 (7th Cir. 1996)). Plaintiff “must show, not merely that [Defendant’s]
proffered reason was wrong, but that it was so plainly wrong that it cannot have been the
employer’s real reason.” Fichter v. AMG Res. Corp., 528 F. App’x 225, 230 (3d Cir. 2013).
i. Pretext: Fabrication
In this case, Plaintiff has admitted to violating company policy by removing “manager
dispose of” merchandise from the store. (DS ¶ 31; PR ¶ 31.) Moreover, Plaintiff was aware that
violations of company policy could result in termination. (DS ¶ 35; PR ¶ 35.) The record
evidence also shows that others were fired for similar violations. (DS ¶ 68-70; PR ¶ 68-70.)
Plaintiff admits that his actions—the unauthorized taking of his employer’s merchandise—
subjected him to possible termination. Regardless of whether he took the merchandise because
of a mistaken belief it was permitted or because he was stealing, it is undisputed that Defendant
had grounds to terminate Plaintiff based on company policy. See Norman v. Kmart Corp., 485 F.
App’x 591, 593 (3d Cir. 2012) (“[B]ecause [Plaintiff] admits to the violations she committed,
she cannot show that [her employer’s] reason was false.”). Thus, there is no genuine dispute as
12

Under Nassar, Plaintiff must now show that retaliation was the “but for” cause of the adverse
employment action.
11

to whether Defendant’s proffered reason for termination was a fabrication—Plaintiff admits to
the alleged conduct.
ii. Pretext: “But For” Cause
Plaintiff makes five arguments why Defendant’s proffered non-retaliatory reason for
termination was a pretext: (1) unusually suggestive timing; (2) the destruction of Ms. Saball’s
notes; (3) the termination of other employees at Store 1674; (4) the reasons provided to Plaintiff
for his termination; and (5) the reaction of his superiors to his complaints.
Plaintiff argues that, because Ms. Saball recommended that he be terminated shortly after
he and his fiancée attempted to contact Ms. Saball, Defendant’s reason for terminating him was
pretextual. 13 Similarly, Plaintiff argues that the fact Ms. Saball destroyed her hand-written notes
regarding the timing and content of Plaintiff’s complaints also shows pretext.14 But in this case,
the timing of Ms. Saball’s recommendation is not dispositive for summary judgment. Plaintiff
only began complaining about the alleged discrimination after he admitted to removing
“manager dispose of” merchandise from the store without permission and after his store failed
the loss prevention audit. Even assuming Defendant was terminated shortly after complaining
about alleged discrimination, it is not enough to show pretext in this case. See, e.g., Dellapenna
v. Tredyffrin/Easttown Sch. Dist., 449 F. App’x 209, 216 (3d Cir. 2011) (“She cannot show that
13

For support, Plaintiff cites to Capilli v. Whitesell Const. Co., Civ. No. 04-5777, 2006 WL
1722354 (D.N.J. June 21, 2006). But Capilli is distinguishable on its facts. Unlike this case,
Capilli did not involve allegations of discrimination that only occurred after an investigation by
the employer. In any event, on appeal, the Third Circuit found that temporal proximity alone
was not enough to demonstrate pretext and affirmed judgment as a matter of law. Capilli v.
Whitesell Const. Co., 271 F. App’x 261, 266 (3d Cir. 2008) (“We do not believe that the close
temporal proximity between Capilli’s termination and her medical leave is sufficient to draw this
inference because, as outlined above, Capilli’s problems interacting with her co-workers at
Whitesell are amply documented in the record and began well before she experienced medical
problems.”)
14

Defendant contends that any information in these notes would have been captured in the
statements and documentation from AutoZone’s investigation. (DR ¶ 54.)
12

her firing at the end of a months-long investigation into her accounting practices was the result of
a complaint she made after the investigation had begun.”); Verma v. Univ. of Pennsylvania, 533
F. App’x 115, 119 (3d Cir. 2013) (“[T]his Court has declined to infer such a causal link where an
employee’s negative performance evaluations predated any protected activity.”); Shaner v.
Synthes, 204 F.3d 494, 505 (3d Cir. 2000) (noting that the timing of a negative performance
evaluation was not “unusually suggestive” when the negative evaluations started prior to
plaintiff’s first charge of discrimination); Choy v. Watson Wyatt & Co., Civ. No. 04-4097, 2006
WL 1784122, *6 (D.N.J. June 26, 2006) (“[A]ctions for retaliatory discharge will not be
successful where allegations of employer misconduct are obviously raised as a ‘smokescreen in
challenge to the supervisor’s legitimate criticism,’ rather than voiced in good faith opposition to
perceived employer misconduct.”). In any event, Plaintiff admits to the conduct that is the
reason for his termination. Since Nassar, a Plaintiff must show that retaliation is the “but for”
cause of his termination. There is no dispute that Plaintiff’s action could result in termination.
(DS ¶ 35; PR ¶ 35.) Plaintiff has not met his burden to show Defendant’s proffered reason for
termination was a pretext or that retaliation was the but for cause of his termination. No
reasonable juror could find “facts that demonstrated, by a preponderance of the evidence, that the
nonmoving party is entitled to a verdict.” In re Paoli, 916 F.2d at 860.
Plaintiff also argues that the fact that three other employees were terminated for theft
after the same loss prevention investigation shows pretext. (Pl.’s Br. at 22.) But the fact that
other employees were also fired for similar offenses without asserting discrimination claims
further supports Defendant’s non-retaliatory reason for Plaintiff’s termination. The fact that the

13

other employees were fired earlier and for differing theft amounts 15 does not demonstrate “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them
unworthy of credence.” Keller, 130 F.3d at 1108-09.
Plaintiff also argues that Defendant has changed its reason for termination multiple times,
demonstrating pretext. (Pl.’s Br. at 24.) But Defendant has consistently stated that Plaintiff’s
termination was for the unauthorized removal of merchandise.
removed merchandise without authorization.

Indeed, Plaintiff admits he

Even if Defendant listed the incorrect stolen

merchandise or date, Defendant has consistently stated that Plaintiff was terminated for theft—
this “inconsistency” is not sufficient to overcome Defendant’s non-retaliatory reason for
Plaintiff’s termination especially considering the fact Plaintiff admits to the infraction. See
Butler v. Cooper-Standard Auto., Inc., 498 F. App’x 549, 553 (6th Cir. 2012); see also Clair v.
Agusta Aerospace Corp., 592 F. Supp. 2d 812, 820-21 (E.D. Pa. 2009) (“[P]ointing to a single
inconsistency does not automatically overcome a legitimate, non-discriminatory reason for
termination.”).
Plaintiff also complains of and distorts various comments made during depositions in this
matter. 16 These comments, made long after Plaintiff’s termination, do not show that the nonretaliatory reason for his termination was a pretext. Finally, Plaintiff argues that Defendant’s
non-retaliatory reason is a pretext because Defendant allegedly failed to levee severe punishment
15

Plaintiff argues that the other terminated employees had theft amounts ranging from $10 to
$1,300 while Plaintiff had an amount of “$0.00.” But the value attributed to Plaintiff’s admitted
merchandise removal does not change the fact that it is a fireable offense.
16

Plaintiff also complains of a comment allegedly made by Mr. Doug Haley during his
termination meeting. (Pl.’s Br. at 25.) Plaintiff does not allege that Mr. Haley had anything to
do with the decision to terminate him. These comments do not rebut the non-retaliatory reason
for Plaintiff’s termination.
14

on Mr. Manjarres after its investigation. (Pl.’s Br. at 25.) But whether or not Defendant leveed a
severe enough punishment on Mr. Manjarres is not relevant to whether or not Defendant’s
reasons for recommending termination almost two months earlier were pretextual.
Plaintiff also fails to rebut Defendant’s second proffered reason for terminating
Plaintiff—his alleged theft of beverages from the store. Whether or not Plaintiff actually stole
the beverages is not important—it is only important that Mr. Smith believed that Plaintiff stole
the merchandise. See Keller, 130 F.3d at 1109. Plaintiff was required to come forward with
evidence showing that Mr. Smith’s reason for firing Plaintiff was either a fabrication or that
retaliation was the “but for” cause of his firing. 17 Fuentes, 32 F.3d at 762; Nassar, 133 S. Ct. at
2534. Plaintiff has done neither.
In short, Plaintiff admits that he violated AutoZone’s company policy and has failed to
show that this non-retaliatory reason for his termination was a pretext. No reasonable juror could
find for the Plaintiff on this claim under these circumstances.
B. Plaintiff’s Disparate Treatment Discrimination Claim
To establish a prima facie case of discrimination, Plaintiff must show that (1) he belongs
to a protected class; (2) he was qualified for the position; (3) he was subject to an adverse
employment action; and (4) the adverse action was under circumstances giving rise to an
inference of discrimination. Shahin v. Delaware, Civ. No. 13-2120, 2013 WL 3781376, *1 (3d
Cir. July 22, 2013). In order to proceed under a disparate treatment theory to establish an
inference of discrimination, a plaintiff must show that his employer treated him less favorably
than similarly situated employees who were not in the protected class. Johnson v. St. Luke’s
Hosp., 307 F. App’x 670, 672 (3d Cir. 2009) (“Johnson relies on a disparate treatment theory to
17

Plaintiff asserts that Ms. Saball was the person who decided to terminate him. Even if this is
the case, the same reasoning applies to Ms. Saball’s reasons for terminating Plaintiff.
15

establish an inference of racial discrimination. To proceed in this fashion, Johnson must show
that St. Luke’s treated her less favorably than similarly situated employees who were not in her
protected class.”). Like retaliation, should a plaintiff establish a prima facie case, the defendant
may come forward with a legitimate non-discriminatory reason for its decision. Id. at *2.
Should this showing be made, the burden shifts back to the plaintiff to show by a preponderance
of the evidence that the employer’s explanation is false and that discrimination was the real
reason for the adverse employment action. Id. In order to show pretext in the context of a
discrimination claim, Plaintiff must provide “evidence, direct or circumstantial, from which a
fact-finder could reasonably either: (1) disbelieve the employer’s articulated legitimate reasons;
or (2) believe that an invidious discriminatory reason was more likely than not a motivating or
determinative cause of [the employer’s] action.” Shahin v. Delaware, Civ. No. 13-1955, 2013
WL 5120863, *3 (3d Cir. Sept. 16, 2013).
Because Defendant has offered a non-discriminatory reason for Plaintiff’s termination,
and Plaintiff failed to demonstrate that those reasons were pretextual (for the same reasons
discussed above with respect to retaliation), summary judgment in favor of Defendant with
respect to Plaintiff’s disparate treatment discrimination claim must be granted.
Plaintiff also fails to show that the adverse action was under circumstances giving rise to
an inference of discrimination. There is no connection between Mr. Manjarres’ comments and
Defendant’s decision to terminate Plaintiff. Indeed, Plaintiff fails to connect Mr. Manjarres’
comments with either Ms. Saball’s recommendation or Mr. Smith’s final decision to terminate
his employment. Defendant’s motion for summary judgment with respect to Plaintiff’s disparate
treatment discrimination claim must be granted on this separate and independent ground.

16

C. Plaintiff’s Hostile Work Environment Claims
Defendant makes three arguments for why Plaintiff’s hostile work environment claims
fail.

First, Defendant argues that the alleged conduct was not objectively or subjectively

sufficiently severe or pervasive so as to alter the terms and conditions of employment and create
an intimidating, hostile, or offensive working environment. Second, Defendant argues that the
comments did not affect Plaintiff’s work or health. Third, Defendant argues that it is entitled to
the affirmative defense of reasonable care as outlined in Faragher v. City of Boca Raton, 524
U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
i. Legal Standard
In order to meet his prima facie case for a hostile work environment claim, Plaintiff must
prove: “(1) that he suffered intentional discrimination because of his race or national origin; (2)
that the discrimination was severe and pervasive; (3) that the discrimination detrimentally
affected him; (4) that the discrimination would detrimentally affect a reasonable person of the
same race in that position; and (5) the existence of respondeat superior liability.” Sanchez v.
SunGard Availability Servs. LP, 362 F. App’x 283, 286 (3d Cir. 2010). “In employing this
analysis, a court must evaluate the frequency of the conduct, its severity, whether it is physically
threatening or humiliating, and whether it unreasonably interferes with an employee’s work
performance.” Id. at 286-87. “Title VII is not violated by ‘[m]ere utterance of an . . . epithet
which engenders offensive feelings in an employee’ or by mere ‘discourtesy or rudeness,’ unless
so severe or pervasive as to constitute an objective change in the conditions of employment.” Id.
at 287 (citing Faragher, 524 U.S. at 787); see also Caver v. City of Trenton, 420 F.3d 243, 262
(3d Cir. 2005) (“[O]ffhanded comments, and isolated incidents (unless extremely serious) are not
sufficient to sustain a hostile work environment claim. Rather, the conduct must be extreme to

17

amount to a change in the terms and conditions of employment.” (internal citations and quotation
marks omitted)).

Title VII is only violated “when the workplace is permeated with

discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working environment.” Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (internal quotation marks omitted).
“An employer is subject to vicarious liability to a victimized employee for an actionable
hostile environment created by a supervisor with immediate (or successively higher) authority
over the employee.” Faragher, 524 U.S. at 807. If no tangible employment action is taken, a
defending employer may raise an affirmative defense to liability or damages. 18 Id. The defense
has two elements: “(a) that the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably
failed to take advantage of any preventive or corrective opportunities provided by the employer
or to avoid harm otherwise.” Id. “No affirmative defense is available, however, when the
supervisor’s harassment culminates in a tangible employment action, such as discharge,
demotion, or undesirable reassignment.” Id. at 808.
ii. Analysis
In order to survive summary judgment, Plaintiff must show that the alleged
discrimination was “severe or pervasive.” Sanchez, 362 F. App’x at 286. Plaintiff complains
that the remarks Mr. Manjarres made occurred about once a month, from October 2010 until
March 2011. There is no record evidence that Mr. Manjarres physically threatened Plaintiff in
this handful of interactions spread over 6 months. There is no doubt that these comments were
not “pervasive.” Indeed, the vast majority of time, Mr. Manjarres was not physically present at
18

The same affirmative defense is outlined in Burlington Indus., Inc. v. Ellerth. Ellerth, 524
U.S. at 765.
18

Plaintiff’s store. He visited about twice a month, and the discrimination Plaintiff describes only
occurred in half of those interactions. But the Court need no reach the question of whether or not
these comments were “severe” because even if they were “severe,” Defendant would be entitled
to the affirmative defense discussed in Faragher and Ellerth. Even construing all facts and
inferences in a light most favorable to Plaintiff, as the Court must do on a motion for summary
judgment, Plaintiff waited an unreasonable amount of time before attempting to use AutoZone’s
anti-discrimination opportunities.
There is no dispute that AutoZone has a company policy that prohibits discrimination and
requires that employees report any discrimination immediately. 19 (DS ¶¶ 11-14; PR ¶¶ 11-14.)
AutoZone makes a handbook with its policy prohibiting discrimination, harassment, and
retaliation available to every employee. (Id.) Even taking Plaintiff’s assertions as true, he failed
to even attempt to report any alleged harassment until the day after he failed AutoZone’s loss
prevention audit. 20 (PS ¶¶ 36-38.) This suspicious timing, coupled with Plaintiff’s delay of
nearly four months without explanation, demonstrates that Plaintiff unreasonably failed to take
advantage of Defendant’s preventative measures as a matter of law.
Other courts have found this amount of time before action to be unreasonable as a matter
of law. See, e.g., Casiano v. AT&T Corp., 213 F.3d 278, 287 (5th Cir. 2000) (four month delay
unreasonable); Thornton v. Fed. Express Corp., 530 F.3d 451, 458 (6th Cir. 2008) (noting that
waiting to report until two months into a leave of absence was unreasonable); Jackson v. Cnty. of
19

The alleged harassment in this case is not linked to any tangible employment action. There is
no evidence that Mr. Smith, the person responsible for Plaintiff’s termination, participated in any
of the alleged harassment.
20

Plaintiff alleges that he reported the alleged harassment to Ms. Saball on February 15, 2011—
over a month after the audit. After this report, AutoZone investigated Plaintiff’s complaints and
issued a “Corrective Action Review Form” to Mr. Manjarres. (PS ¶ 25; DS ¶¶ 49-50; PR ¶¶ 4950.)
19

Racine, 474 F.3d 493, 502 (7th Cir. 2007) (finding four months unreasonable); Williams v.
Missouri Dep’t of Mental Health, 407 F.3d 972, 977 (8th Cir. 2005) (finding four months
unreasonable), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031
(8th Cir. 2011); Pinkerton v. Colorado Dep’t of Transp., 563 F.3d 1052, 1064 (10th Cir. 2009)
(2.5 month delay unreasonable); Minix v. Jeld-Wen, Inc., 237 F. App’x 578, 586 (11th Cir. 2007)
(finding that four months, six months, and a year was unreasonable); Walton v. Johnson &
Johnson Servs., Inc., 347 F.3d 1272, 1291 (11th Cir. 2003) (finding 2.5 months unreasonable);
Taylor v. Solis, 571 F.3d 1313, 1320 (D.C. Cir. 2009) (finding a five or six month delay
unreasonable); Adams v. City of Gretna, 2009 WL 2883038, *7 (E.D. La. Sept. 2, 2009) (finding
four months was unreasonable). The Court finds these cases persuasive and, even absent these
cases, would independently conclude that Plaintiff’s lack of action for four months without
explanation to be unreasonable as a matter of law. There is no genuine dispute as to any material
fact, and summary judgment with respect to AutoZone’s affirmative defense is granted.
Plaintiff argues that Defendant is not entitled to this affirmative defense because he did in
fact use AutoZone’s remedial apparatus. 21 (Dkt. No. 41 at 37.) But such a rule would essentially
eviscerate the affirmative defense and is contrary to the Supreme Court’s holdings in Faragher and
Ellerth. Faragher only requires that the employee unreasonably fail to take advantage of preventive
or corrective opportunities. Faragher, 524 U.S. at 807. Under Plaintiff’s view, an employee could

21

For support, Plaintiff cites a special concurrence from Indest v. Freeman Decorating, Inc., 168
F.3d 795, 803 (5th Cir. 1999)—a case that is not binding on this Court. But the Indest
concurrence is not contrary to this Court’s holding. Indeed, Indest merely concludes that the
affirmative defense described in Faragher and Ellerth requires both recited prongs rather than
one or the other. Id. at 801 (noting the defense requires that the employee fail to act promptly).
Indest does not hold that any invocation of an anti-discrimination apparatus—including an
untimely invocation—negates the affirmative defense. Moreover, the Third Circuit has affirmed
the grant of summary judgment for an employer on this ground when an employee lodged an
unreasonably delayed complaint. See Newsome v. Admin. Office of the Courts of the State of
New Jersey, 51 F. App’x 76, 80-81 (3d Cir. 2002).
20

nullify this defense by merely complaining of alleged harassment at any time. Neither law nor logic
support this interpretation of Faragher.

D. Plaintiff’s State Law Claims
Plaintiff’s remaining New Jersey Law Against Discrimination (“NJLAD”) claims are
predicated on state law. Pursuant to 28 U.S.C. § 1367(c)(3), “[t]he district court may decline to
exercise supplemental jurisdiction over a claim” if “the district court has dismissed all claims
over which it has original jurisdiction.” The Third Circuit has recognized the authority of district
courts to decline to retain jurisdiction after the federal claims have been dismissed. See, e.g.,
Annulli v. Panikkar, 200 F.3d 189, 202-03 (3d Cir. 1999) (affirming decision of the district court
to decline to exercise pendent jurisdiction after granting summary judgment to the defendants on
the claims arising under federal law), abrogated on other grounds by Rotella v. Wood, 528 U.S.
549 (2000); Jackson v. Fauver, 334 F. Supp. 2d 697, 737-38 (D.N.J. 2004). The Court therefore
declines to exercise supplemental jurisdiction over Plaintiff’s remaining claims in light of the
considerations of judicial economy, convenience, fairness, and comity. Plaintiff may choose to
refile those claims in state court.
E. Plaintiff’s Cross Motion for Spoliation and an Adverse Inference
Plaintiff seeks an adverse inference for spoliation based on Ms. Saball’s destruction of
her notes that allegedly included information about the timing and content of Plaintiff’s
complaints of discrimination.
“Spoliation occurs where: the evidence was in the party’s control; the evidence is
relevant to the claims or defenses in the case; there has been actual suppression or withholding of
evidence; and, the duty to preserve the evidence was reasonably foreseeable to the party.” Bull
v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012).

21

For an adverse inference to apply, “it must appear that there has been an actual
suppression or withholding of the evidence.

No unfavorable inference arises when the

circumstances indicate that the document or article in question has been lost or accidentally
destroyed, or where the failure to produce it is otherwise properly accounted for.” Brewer v.
Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995) (citing, inter alia, 29 Am. Jur. 2d
Evidence § 177 (“Such a presumption or inference arises, however, only when the spoliation or
destruction [of evidence] was intentional, and indicates fraud and a desire to suppress the truth,
and it does not arise where the destruction was a matter of routine with no fraudulent intent.”)).
“[T]he key considerations in determining whether such a sanction is appropriate should be: (1)
the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice
suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid
substantial unfairness to the opposing party and, where the offending party is seriously at fault,
will serve to deter such conduct by others in the future.” In re Hechinger Inv. Co. of Delaware,
Inc., 489 F.3d 568, 579 (3d Cir. 2007).
In this case, Plaintiff’s request for an adverse inference fails for two reasons. First, the
duty to preserve the evidence was not reasonably foreseeable to the party. Just because Plaintiff
complained of discrimination and Ms. Saball recommended his termination based on theft and
the unauthorized removal of “manager dispose of” merchandise does not mean that this litigation
was “reasonably foreseeable.” Not every complaint of discrimination or termination results in
litigation. Second, it does not appear that there has been actual suppression or intentional
withholding of evidence.

Ms. Saball indicated that she destroyed the notes because their

contents would have been preserved in AutoZone’s investigation documents and that it was her
usual practice. (DR ¶ 54.) Moreover, Plaintiff has not been prejudiced as evidence of the timing

22

of his calls to Ms. Saball and their content has been provided by his own testimony and
telephone records. There is no evidence that Ms. Saball intentionally destroyed her notes in
order to suppress evidence. Plaintiff’s spoliation motion is denied.
IV.

CONCLUSION & ORDER
For the reasons stated above, Defendant’s motion for summary judgment is granted in

part. Plaintiff’s motion for spoliation is denied, and Plaintiff’s motion for a sur-reply is denied as
moot. An appropriate Order will issue.

/s/ Faith S. Hochberg__________
Hon. Faith S. Hochberg, U.S.D.J.

23