DIENG v. COMPUTER SCIENCE CORPORATION et al
Filing
50
OPINION fld. Signed by Judge Jose L. Linares on 3/8/16. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MAMADOU ALIOU DIENG,
Civil Action No.: 14-5381 (JLL)
Plaintiff,
OPINION
V.
COMPUTER SCIENCE CORPORATION
AND JAMES ILLO,
Defendants.
LINARES, District Judge.
This matter comes before the Court by way of a motion for
summary judguent filed by
Defendants Computer Sciences Corporation (“CSC”
or the “Company”) and James Illo
(collectively “Defendants”). (ECF No. 38). Plaintiff
Mamadou Aliou Dieng (“Plaintiff’ or
“Dieng”) has opposed this motion (ECF No. 43) and Defe
ndants have replied to that opposition
(ECF No. 47). The Court decides this matter without oral
argument pursuant to Federal Rule of
Civil Procedure 78. For the reasons stated herein, Defe
ndants’ motion to dismiss Plaintiff’s
Amended Complaint is granted in part and denied in part.
BACKGROUND’
Plaintiff, Mamadou Alioui Dieng, is a black man from Guin
ea. (ECF No. 38-1, “Def.’s SOF
¶
1; ECF No. 43-1, “Pl.’s SOF
¶
1).2
Defendant CSC is Plaintiffs former employer. (SOF
¶ 2).
l
Unless otherwise indicated, the information included in
this section is deemed undisputed, as taken from the
parties’ competing statements of facts as well as all other
papers before the Court.
2
As the paragraph numbering of Defendant’s Statement of
Undisputed Material Facts and Plaintiff’s responses
thereto generally align, any citation to “SOF” rather than
“Def ‘s SOF” or “P1. ‘s SOF” shall refer to both parties’
submissions.
1
Defendant James Illo is an employee of CSC who work
ed with Dieng at the Company. (Id.).
However, the exact nature of the relationship between Plain
tiff and Jib is disputed. (Pl.’s SOF
¶
2). Plaintiff worked out of the Company’s Mariton, New Jerse
y location, where “CSC supports
the Logistics Modernization Program (the “LMP proje
ct”) for the Department of Defense
(“DOD”) and Army by supporting and assisting the DOD’s integ
ration effor
ts aimed at sustaining,
monitoring, measuring, and improving logistics support for milit
ary operations across the nation.”
(SOFJ3).
In September 2012, Plaintiff was hired by CSC as a Develope
r on the LMP project. (ECF No.
21, Amended Complaint, “Compi.” ¶5; ECF No. 23, Def.’s Mov.
Br. at 2). From September 2012
through December 2012, Mr. Muhammad El Eid (“El Eid”) serve
d as Plaintiff’s project manager
and people manager. (SOF
¶J 22-23).
In March 2013, after approximately six months in that
position, El Eid recommended that Plaintiff be transferre
d to the position of open production
monitor on a team managed by Ms. Lorelei Hunt (“Hunt
”). (SOF
¶J 8, 28).
The parties dispute why El Eid made the decision to trans
fer Plaintiff to Hunt’s group. (Pl.’s
SOF
¶ 28).
The Company argues that “El Eid determined, in his profe
ssional judgment and with
input from [Plaintiffs prior supervisor] that Plaintiff did not
have the skill set necessary to succeed
in the Developer role.” (Def.’s SOF
¶ 27).
In support of this position, CSC cites to the January
2013 Annual Appraisal of Plaintiff’s performance, whic
h El Eid prepared. (Def.’s SOF
¶
26).
According to that Appraisal, El Eid rated Plaintiff as only
partially meeting expectations in the
following four out of eleven categories: Quality of Wor
k Output, Timeliness of Delivery, Use of
Resources, and Work Habits. (Id.). El Eid specifica
lly explained that Plaintiff’s “work and
assignment lacks a great deal of quality;” that Plain
tiff “cannot manage his time to work on
multiple tasks at the same time” and therefore cann
ot be assigned multiple tasks at once; and that
2
Plaintiff “can NOT work on his own when it comes to developm
ent.” (Id). Plaintiff, for his part,
notes that the 2013 performance review contained some posi
tive feedback—namely that he
received a “meets/occasionally exceeds” score in the remaining
categories and he also states that
“El Eid never told him that he had any performance deficienci
es” or that such deficiencies were
the reason for his transfer. (Pl.’s SOF 26, 28).
¶J
After joining Hunt’s team, Plaintiff began working with Defe
ndant Il1, the senior Production
Monitor. (SOF
¶ 3 3-34). Illo’s duties included providing training to Production Monitors and
“assigning and monitoring the day-to-day tasks of the othe
r production monitors.” (Pl.’s SOF
l0a; SOF ¶ 33). Illo provided training to Plaintiff during Plain
tiff’s first two
Monitor.
(SOF
¶
months as Production
¶J 3 3-34). Thereafter, Plaintiff received several follow-up training sessions,
although the parties dispute why Plaintiff was subject to addi
tional training. (Pl.’s SOF ¶J 3 5-40).
Plaintiff contends that all new Production Monitors recei
ved supplemental training; however,
Defendants maintain that Plaintiff was sent to additiona
l training because his performance was
deficient. (Id.).
The Company maintains that “[d}espite the extensive train
ing provided to Plaintiff, after more
than six months in the Production Monitor position, Plain
tiff’s performance was still deficient.”
(Def’s SOF ¶ 40). The decision was made to place Plain
tiff on a performance improvement plan
(“PIP”), although the parties dispute whether it was Hun
t or Mr. Kenneth Muss, the Director of
Enterprise Services, who decided to place Dieng on a PIP.
(SOF ¶f 41-42). However, “[ajs
Plaintiff had not yet received a formal performance appr
aisal in his role as Production Monitor,
CSC management determined that Plaintiff would need
to receive a project appraisal and interim
annual appraisal prior to being placed on the PIP.” (SOF
¶ 43). To that end, in November 2013,
Defendant Illo and Ms. Phyllis Lazev (the individua
l responsible for assigning certain work to
3
Production Monitors) both prepared Appraisals of Plaintiff’s work.
(SOF
¶ 45).
Hunt received
the Illo and Lazev Appraisals. (Id.). While Jib ranked Plaintiff
as below expectations or only
partially meets expectations in four categories, Lazev ranked
Plaintiff’s performance as below
expectations or only partially meets expectations in five catego
ries. (SOF
¶J 48-49).
That same
month, Hunt prepared her own Appraisal in which she ranked
Plaintiff as falling below
expectations in all eleven categories. (SOF 51).
¶
Defendants contends that Dieng continued to perform deficie
ntly in December 2013 and
January 2014. (SOF ¶ 54). Plaintiff met with El Eid in Januar
y 2014, at which time he was given
the lowest possible performance ranking. (SOF
¶ 57).
According to Defendants, “[ajs a result of
Plaintiff’s poor performance and his ‘Does Not Meet Expect
ations’ rating on his Interim
Performance Evaluation,” El Eid decided to place Plaintiff
on a PIP. (Def.’s SOF
¶
67). The
parties do not dispute that Plaintiff was placed on a PIP around
February 4, 2014. (SOF
¶J 68-
69).
Despite having been placed on a PIP, CSC states that Plainti
ff continued to perform below
expectations. (Def.’s SOF
¶ 71).
Defendants offer two specific examples. First, CSC contends
that “on February 10, 2014, CSC was forced to restore code
that Plaintiff improperly deleted.”
(Def.’s SOF
¶ 74).
Second, CSC alleges that on or around February 13, 2014,
in regards to his
production monitoring duties, Plaintiff provided wrong inform
ation to a client after he reviewed
the wrong production environment. (Def.’s SOF
¶ 76). The Company states that “[a]s a
consequence of Plaintiffs continued performance deficie
ncies during the PIP. Hunt removed
Plaintiff’s access to the production systems because Plainti
ff’s errors were jeopardizing CSC’s
ability to succeed on the LMP project.” (Def. ‘s SOF 81).
The parties agree that after removing
¶
.
4
.
Plaintiff from her team, Hunt contacted Muss to inform him
of “significant issues with
pertbrmance.” (SOF
Mr. Dieng’s
¶ 82).
It is undisputed that on February 21, 2014, Muss decid
ed to terminate Plaintiff effective
February 28, 2014. (SOF
¶ 84). While Defendants state that Muss’s decision to terminate “was
based upon the negative impact on the work environm
ent and risk to CSC caused by Plaintiff’s
continued poor performance,” Dieng notes that “Mu
ss testified that he relied entirely on
information provided by Ms. Hunt in making the decision
to terminate Mr. Dieng” and that Muss
did not “recall ever personally meeting Mr. Dieng or spea
king with him.” (SOF ¶ 84).
On February 27, 2014, El Eid and Hunt told Plaintiff that
the Company decided to terminate
his employment. (SOF
¶ 86). It is undisputed that Defendant JIb “did not make the decision to
terminate Plaintiff’s performance or recommend that
he be terminated.
involvement in the PIP process was to monitor Plaintiff’s
tasks and to update Hunt regarding the same.” (SOF
In fact, his only
completion of the production monitoring
¶ 85).
Plaintiff believes that CSC’s decision to terminate his emp
loyment was based upon race and
national origin discrimination rather than the reasons offer
ed by CSC—namely, failing to meet the
Company’s expectations. Thus, Plaintiff filed the insta
nt action against CSC alleging race and
national origin discrimination under the New Jersey Law
Against Discrimination (“NJ LAD”),
N.J.S.A. 10:5-1, et seq. (Compi.
¶J 22, 29). Additionally, Plaintiff maintains that he was also
terminated for requesting medical leave to visit his sick
mother, and therefore brings claims for
retaliation under the NJ Family Leave Act (“NJ FLA
”), N.J.S.A. 34:1 lB-b, et seq., and the Family
Medical Leave Act (“FMLA”), 29 U.S.C. 2601, et seq.
(Id. ¶J 30-35). The bases for Plaintiff’s
§
allegations are discussed in detail below. (Id.
30-35).
¶J
5
LEGAL STANDARD
Summary judgment is appropriate when, drawing all reaso
nable inferences in the non
movant’s favor, there exists “no genuine dispute as to any mate
rial fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256 (1986). “[Tjhe moving party must show
that the non-moving party has failed
to establish one or more essential elements of its case on
which the non-moving party has the
burden of proof at trial.” McCabe v. Ernst & Young, LLP, 494
F.3d 418,424 (3d Cir. 2007) (citing
C’elotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
The Court must “view the underlying facts and all reaso
nable inferences therefrom in the
light most favorable to the opposing party.” Pa. Coal Ass ‘n
v. Babbitt, 63 F.3d 231, 236 (3d Cir.
1995). Moreover, “[i]n determining the appropriatenes of
s
summary judgment, the court should
not consider the record solely in piecemeal fashion, giving cred
ence to innocent explanations for
individual strands of evidence, for a jury
.
.
.
would be entitled to view the evidence as a whole.”
Abramson v. William Patterson College ofNew Jersey, 260
F.3d 265, 285 (3d Cir. 2001) (quoting
entirely Howley v. Town of Straiford, 217 F.3d 141, 151
(2d Cir. 2000)). If a reasonable juror
could return a verdict for the non-moving party rega
rding material disputed factual issues,
summary judgment is not appropriate. See Anderson, 477
U.S. at 242-43, 249 (“At the summary
judgment stage, the judge’s function is not himself to weig
h the evidence and determine the truth
of the matter but to determine whether there is a genuine issue
for trial.”).
DISCUSSION
I.
Counts I & II (NJ LAD)
Defendants seeks summary judgment with regards to Dieng’
s claims of race and national
original discrimination under the NJ LAD. (Def.’s Mov.
Br. at 11-20).
6
The starting point for an action brought pursuant to the NJ
LAD is the framework outlined
by the Supreme Court in McDonnell Douglas Corporati
on v. Green, 411 U.S. 792 (1973). See
Monaco
i’.
American General Assur. Co., 359 F.3d 296, 300 (3d Cir.
2004) (“The Supreme Court
ofNew Jersey has explained the three-step burden shifting
analysis ‘as a starting point’ for analysis
of claims under the NJLAD.”) (citing Bergen Commerc
ial Bank v. Sisler, 157 N.J. 188, 210
(1999)). The three-step McDonnell Douglas analysis proc
eeds as follows. First, a plaintiff must
establish a prima facie case of discrimination. Monaco,
359 F.3d at 300. To establish a prima
facie case of discriminatory discharge under the NJ LAD,
a plaintiff “must demonstrate: (1) that
plaintiff was in a protected class; (2) that plaintiff was othe
rwise qualified and performing the
essential functions of the job; (3) that plaintiff was terminate
d; and (4) that the employer thereafter
sought similarly qualified individuals for the job.” Victor
v. State, 203 N.J. 383, 408-409 (2010).
Assuming a plaintiff meets the prima facie case, the
burden shifts to the defendant to
articulate a legitimate non-discriminatory reason for the
adverse employment action. Monaco, 359
F.3d at 300. Finally, if the defendant meets its burd
en, the plaintiff must then “discredit the
defendant’s proffered reason for its action or adduce evid
ence that discrimination was more likely
than not a motivating or determinative cause of the adve
rse employment action.” Id.
A. Plaintiff’s Prima facie case of Race and National
Origin Discrimination
The parties appear to agree that Plaintiff has offer
ed sufficient evidence by which a
reasonable jury could find that he satisfies the first three
prongs ofhis NJ LAD claims. (See Def.’s
Mov. Br. at 12-13; P1.’s Opp. Br. at 15). Defendan
ts argue, however, that Plaintiff cannot satisfy
the fourth element of this claim—namely, that Plain
tiff was replaced by an individual who was
not a member of his protected classes. (Def.’s Mov.
Br. at 12-13).
7
However, the Court finds that Plaintiff has offered sufficient
evidence by which a
reasonable jury could find that Defendants replaced Plaintiff with
employees outside of his race
and national origin. Plaintiff has offered an e-mail from Hun
t to El Eid dated February 28, 2014—
the day immediately after Plaintiff’s termination—in which Hun
t directs El Eid to “[m]ove Richard
Beetschen to.
.
.
Production Monitoring,” the same position held by Plaintiff when
he was fired.
(Pl.’s Opp. Br. at 15; Pl.’s SOF
¶ 115; Meil Cert., Exh.
9),3
Additionally, Plaintiff cites to the
deposition testimony of Hunt in support of his argument that
“Hunt hired two production monitors
fresh out of college in December 2013
(Pl.’s SOF
.
.
.
neither of [whom] were Black or of African descent.”
¶ 87a). Moreover, the parties do not dispute that when the new hires arrived, Plaintiff
was removed from a desk in an office and sent to a cubicle, outs
ide of the office. (SOF ¶89).
Defendants argue that “the timing [of this email] alone, without
any information regarding
the position Beetschen was assuming, is insufficient to creat
e a genuine issue of material fact.”
(Def.’s Reply Br. at 1). Defendants rely upon a Third Circ
uit case of Hyland v. American Intern
Groip., which is distinguishable from the case at bar.
360 Fed. App’x. 365 (3d Cir. 2010)
(unpublished). In that case, the Circuit affirmed the distr
ict court’s finding that plaintiff failed to
meet the forth prong of his discrimination case wher
e the alleged replacement employee
Defendant argues that the Court may not consider this e-mail
as it was attached to the certification of Plaintiff’s
attorney, who, as a non-party to the communication, could
not properly authenticate the document. (Def. ‘s Reply Br.
at 1). While the Court agrees that it may only consider
admissible evidence in a motion for summary judgm
ent,
Defendant has not argued that this e-mail could not be authen
ticated by a proper individual at trial and is therefore
incapable of being admitted into evidence. See Fed. R. Civ,
P. 56(c)( I )(B) (“A party asserting that a fact cannot be
or is genuinely disputed must support the assertion
by. showing that. an adversary cannot produce admiss
ible
evidence to support the fact”) (emphasis added); Fed. R.
Civ. P.56(c)(2) (“A party may object that the material cited
to support or dispute a fact cannot be presented in aform
that would be admissible in evidence.”) (emphasis added)
;
see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (2986)
(“We do not mean that the nonmoving party must produce
evidence in a form that would be admissible at trial in
order to avoid summary judgment.”). As such, and becaus
e
Defendant has not specifically challenged the authenticity
of the document but rather the way in which it was appended
to Plaintiff’s opposing brief, the Court will consider
the email for purposes of this motion.
Of course, the parties do dispute the rationale behind movin
g Plaintiff to a cubicle. (See Def.’s Mov. Br. at 19-20;
P1. ‘s Opp. Br. at 12-13). However, the rationale behind
the move is a disputed issue of material fact that is better
left to ajury.
.
.
8
.
.
“performed functions that [plaintiff] had not performed but did not perform
duties that [plaintiff]
had performed” and where the replacement’s salary was nearly
$55,000 greater than plaintiffs,
suggesting a material difference in the employees’ responsibilities.
Id. at 367. Here, by contrast,
in the February 28, 2014 email, Hunt directs that Beetschen be moved
to Production Monitoring—
the very same position that Plaintiff was terminated from the
day prior. (Meil. Cert., Exh. 9).
Finally, Plaintiffs testimony that he “never called and asked anybod
y if somebody took my place
or not” (Dieng Dep. 181:2-3) does not, contrary to Defendant’s sugges
tion (Def.’s Mov. Br. at 12),
defeat Plaintiffs prima facie claim when presented with other eviden
ce
that Plaintiff was replaced
by at least one individual outside his protected class.
Having found that Plaintiff can meet the prima facie case of his NJ
LAD claims, the Court
now considers whether Defendants have offered a non-discrimi
natory reason for discharging
Plaintiff.
B, Defendants’ Non-discriminatory Reasons for Terminati
ng Plaintiff
Defendants maintains that “[t]he record evidence establishes
that on February 21, 2014,
[Mr. Kenneth] Muss, the Director of Enterprise Services, made
the decision
to terminate Plaintiffs
employment (effective February 28, 2014) as a result
of Plaintiffs continued performance
deficiencies, including serious errors during the PIP proces
s.”
(Def.’s Mov. Br. at 13).
Specifically, the Company cites to the declarations of El Eid
and Hunt, who state that Plaintiffs
performance was deficient (Def.’s Mov. Br. at 13, n. 45).
Defendants also relies upon the
declaration and deposition testimony of Muss (ECF No.
38-9, Muss Dccl.
36).
¶J 4-7; Muss Dep. 15,
As discussed in the Section I, supra, Defendants have
offered additional evidence
substantiating these reasons for terminating Plaintiff in
the form of poor performance reviews by
several supervisors.
9
Accordingly, the Court finds that a reasonable jury could find that
the Company met its
burden of proving non-discriminatory reasons for Plaintiffs discha
rge. As such, the Court will
now consider the final step of the McDonnell Douglas framework.
That is, the Court considers
whether Plaintiff can offer evidence that the proffered reasons
were, in fact, a pretext for a
discriminatory discharge.
C. Plaintiff’s Evidence of Pretext
A plaintiff seeking to avoid summary judgment at the pretext stage
must offer sufficient
evidence that would “allow a factfinder reasonably to infer that
each of the employer’s proffered
non-discriminatory reasons
.
.
.
was either a post hoc fabrication or otherwise did not actually
motivate the employment action (that is, the proffered reason is
a pretext).” Fuentes v. Perskie,
32 F.3d 759, 764-765 (3d Cir. 1994). To that end, “the non-m
oving plaintiff must demonstrate
such weaknesses, implausibilities, inconsistencies, incohe
rencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reason
able factfinder could rationally
find them unworthy of credence,.
.
and hence infer “that the employer did not act for [the asserted]
non-discriminatory reasons.” Id. (quotations omitted); see
also Greenberg v. Camden Cnty.
Vocational Tech. Schs., 310 N.J. Super. 189, 200 (N.J. Super.
Ct. App. Div. 1998); see also
Venegas v. Cosmetic Essence, L.L.C., No. A-4634-13T1, 2015
WL 588403, at *5 (N.J. Super. Ct.
App. Div. Feb. 13, 2015). A plaintiff seeking to defeat summa
ry judgment at the pretext stage
“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 was
wise, shrewd, prudent, or competent.” Fuentes, 32 F.3d
at 765.
10
Plaintiff challenges CSC’s proffered reasons on several grounds.
First, Plaintiff attacks the
credibility of the Company’s proffered reasons in general, argu
ing that sufficient evidence exists
as to whether Plaintiff’s performance was deficient.
Aside from attempting to demonstrate
weaknesses in the Company’s rationale for firing him, Plain
tiff also argues that the Company was
motivated in its termination decision by its animosity toward Plain
tiff on account of his race and
national origin.
i.
Plaintiff’s Evidence with Regards to his Performance Defi
ciencies
Plaintiff states that there is conflicting evidence as to his alleg
ed performance deficiencies.
(Pl.’s Opp. Br. at 16-18). Plaintiff notes that he received a “Me
ets Expectations” rating on his last
performance evaluation prior to joining Hunt’s team, which cont
radicts CSC’s position that
Plaintiff’s performance was deficient. (Id. at 16-17; Pl.’s SOF
¶ 110). Additionally, Plaintiff was
given a raise the month before he was terminated. (Id. at 17; P1.’
s SOF ¶ 110). Moreover, Plaintiff
notes that he can challenge the credibility of the Hunt performan
ce review where she gave Plaintiff
a far worse rating than that given by two supervisors who
had direct contact with Plaintiff and
never addressed any performance deficiencies with Plain
tiff prior to placing him on a PIP. (Id. at
17; Pl.’s SOF ¶ 51).
As to the reasons Hunt provided for terminating Plaintiff prior
to his completion of the PIP,
Plaintiff argues that a jury could find that these too lack
credibility and are therefore pretextual.
(P1. ‘s Opp. Br. at 17-18). As discussed above, the Company
explains that while Plaintiff was on
the PIP, he “received an alert on a system he was required
to monitor” and that “when Plaintiff
received the alert, he looked in the wrong production envi
ronment and, thus, provided the wrong
information to the client.” (Def’s. SOF 76). However
, Plaintiff argues that Defendant Illo is to
¶
blame for Plaintiff having provided wrong information to
a client because Illo allegedly instructed
11
Plaintiff to look in the wrong production environment. (Pl.’s
Opp.
Br. at 17.; Pl.’s SOF
¶
76).
According to Plaintiff, he advised Hunt that Jib instructed him to
look in the wrong production
environment, but that she blamed him for the error anyway. (Pl.’s SOF
¶ 76). Plaintiff also argues
that his error in deleting a code “had no effect on anything in
CSC’s system because when he
realized his mistake, Mr. Dieng called the person responsible for correct
ing the error and was told
it would be fixed and would have no impact.” (Pl.’s Opp. Br. at
17; P1’s. SOF ¶ 75a).
Plaintiff also notes that on January 14, 2014, Hunt emailed El Eid,
stating that she had been
informed that CSC did not “have any budget for Mamadou after
January and he needs to be rolled
off Sustainment on January 31.” (Pl.’s SOF
¶ 42a).
Yet, Mr. Muss has testified that he “didn’t
believe the budget stopped on January 31St for [Plaintiff.]” (Id.).
For these reasons, Plaintiff states that he can show the “weak
nesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffer
ed legitimate reasons for
its action that a reasonable fact finder could find them ‘unworthy
of credence.” (Pl.’s Opp. Br. at
18, quotingDeWees v. RCN Corp., 380N.J. Super. 511, 528 (N.J. Super.
Ct. App. Div. 2005)).
Defendants contend that Dieng cannot show that the reasons given
for his termination were
a pretext where he “admits that other employees had to correct
his work and that he committed
several critical errors.” (Def.’s Mov. Br. at 14). However, this
argument misses the mark. “[T]he
factual dispute at issue is whether discriminatory animus motiva
ted the employer,” and not
whether the employer’s reasons for terminating Plaintiff were
“wise, shrewd, prudent, or
competent.” Fuentes, 32 F.3d at 765. Stated differently, “[P]l
aintiff need not prove that [his race
or national origin] was the sole or exclusive consideration’
in the detennination to discharge him;
rather, he need only show ‘by a preponderance of the eviden
ce that it made a difference’ in that
decision.” Bergen Commercial Bank v. Sisler, 157 N.J.
188, 211 (1999) (quoting Murray v.
12
Newark Housing Auth., 311 N.J. Super. 163, 173-174 (N.J. Super. Ct. Law.
Div. 1998)). To that
end, a plaintiff can establish pretext by showing that the reasons given
for his
termination, whether
true or not, “did not actually motivate the employment action.” Fuente
s, 32 F.3d at 764-65; see
also Greenberg, 310 N.J. Super. at 200.
The Court now considers the extent to which Plaintiff can show that
CSC’s decision to
terminate him was motivated, at least in part, by his race and nation
al origin.
ii.
Plaintiff’s Evidence of Race-Based Discrimination
Plaintiff states that Hunt’s bias against black people is evidenced by
the fact that “[un the
more than 10 years she had been a manger, she had hired numerous people
, likely over a hundred”
but that she could not remember having hired a single black employee prior
to Plaintiffjoining her
team. (Pl.’s
Opp. Br. at 20; Pl.’s SOF ¶ 104).
Plaintiff also notes that after Hunt learned about the instant lawsui
t, she hired a black
employee. (P1. ‘s Opp. Br. at 21; P1. ‘s SOF 105). According to
Plaintiff, Hunt’s behavior toward
¶
the other black employee was equally as discriminating. (Id.).
For example, Plaintiff explains:
(1) that Muss testified that aside from Plaintiff and the black emplo
yee hired after Plaintiff initiated
this lawsuit, he could not remember Hunt complaining about the
performance of anyone else on
her team; (2) that Hunt placed both black employees on PIPs;
(3) that Illo testified that the only
other individual whom he remembers that Hunt placed on PIP was
also dark-skinned; and (4) that
the other black employee was also terminated after being placed
on PIP. (SOF ¶ 105).
The Court finds that Plaintiff has offered enough evidence throug
h which a reasonable jury
could find that the reasons offered by CSC for terminating Plainti
ff are a pretext for race-based
discrimination.
If the jury were to credit Plaintiff’s arguments—premised
upon the above
The Court has reviewed Hunt’s deposition testimony, and
notes that Hunt did recall hiring “at least one black
production monitor” prior to Plaintiffjoining her team. (Meil
Cert., Exh. 2, Hunt Dep. 126:5-6).
13
evidence—that Hunt was biased against black employees, the jury could
reasonably find that
Hunt’s decision to terminate was based, at least in part, on her
discriminatory animus.
Accordingly, the Court denies Defendants’ motion for summary
judgment with respect to
Plaintiff’s claim of race-based discrimination.
iii.
Plaintiff’s Evidence of National Origin Discrimination
In addition to arguing that he was discriminated against because
he is black, Plaintiff
alleges that he was discriminated against on account of his nation
al origin. Plaintiff’s national
origin argument is based upon the facts that (1) Illo allegedly asked
him who had processed his
citizenship (PI.’s Opp. Br. at 6; Pl.’s SOF
¶ 109) and (2) Hunt allegedly laughed at Plaintiff’s
accent when he spoke (Pl.’s Opp. Br. at 5-6; P1.’ SOF 101).
¶
Defendants respond that these two accusation alone do not suffice
to establish that CSC’s
decision to terminate him was motivated by discriminatory animus
based upon
his national origin.
(Def.’s Mov. Br. at 18-2 1). The Court agrees. As to the alleged
question about Plaintiff’s
citizenship, this one-time remark, which occurred in April 2013
and about nine months prior to
Plaintiff’s termination, does not bear upon Plaintiff’s national origin;
rather, it constitutes a vague
remark about Plaintiff’s citizenship. Unlike an employee’s nation
al origin, citizenship status is
not a protected trait under the NJ LAD. See N.J.S.A.
§ 10:5-12. Even were this question to be
construed as a remark targeting Plaintiff’s national origin, the Court
finds this sole remark, made
by an individual who Plaintiff has not alleged made or contrib
uted to the decision to terminate
Plaintiff (SOF
¶ 84), is insufficient to support an inference of national origin discrimination. See
Grasso v, West New York Rd. ofEduc., 364 N.J. Super. 109,
118 (N.J. Super. Ct. App. Div. 2003)
(“Federal courts have held that comments by individuals outside
the decision making process are
considered stray remarks, which on their own are inadeq
uate to support an inference of
14
discrimination.”). Moreover, Plaintiff has not argued that this remark
“constitutes admissible
evidence of managerial atmosphere and a possible discriminatory
intent,” which might render the
remarks more probative. Ryder v. Westinghouse Elec. Corp., 128
F.3d 128, 133 (3d Cir. 1997)
(citing Walden v. Georgia-Pacflc Corp., 126 F.3d 506, 520-21 (3d
Cir. 1997)).
Similarly, the Court finds that Plaintiffs allegation that Hunt laughed
at his accent cannot
support an inference of national origin discrimination. As CSC
points out, Plaintiffs belief that
Hunt’s laughter when he spoke was on account of his accent is
purely speculative. (Def. ‘s Mov.
Br. at 20). When asked at deposition whether Hunt ever told Plainti
ff that she was laughing at his
accent, Plaintiff stated that “[sjhe never told me, but I can tell.”
(Meil Cert. Exh. 1, Dieng Dep.
102:2-4), Plaintiff further admitted that Hunt did not make any specifi
c comment
about his accent
(id. 102:16-18) and that she could have been laughing at the substa
nce of Plaintiffs statements
(id. 102:19-25). Plaintiffs mere belief, without any supporting eviden
ce, that Hunt laughed at his
accent rather than the content of his words cannot suppor
t an inference that Plaintiff was
discriminated against based upon his national origin.
For these reasons, the Court finds that Plaintiff has not offered
sufficient evidence through
which a reasonable jury could find that he was discriminated agains
t based upon his national origin.
Plaintiff offers mere speculation to support his claim of
national-origin discrimination, and
“speculation alone, without more, is insufficient to survive summa
ry judgment.” Torretti v. Main
Line Hosp., Inc., 580 F.3d 168, 179 n.16 (3d Cir. 2009). Accord
ingly, the Court grants Defendants’
motion for summary judgment as to Plaintiffs claim of nationa
l-origin discrimination in violati
on
of the NJ LAD.
D. Whether Illo “Aided and Abetted CSC’s alleged
discrimination in violation of the
LAD.
15
In addition to bringing NJ LAD claims against CSC, Plaintiff alleges
that Illo is liable
under the NJ LAD for having “aided and abetted [CSC] in discrim
inating against Plaintiff in
violation of the [NJ LAD].” (Compi.
¶ 24).6 Defendants argue that the aiding and abetting claim
cannot stand because Jib was not Plaintiffs supervisor and because
“there is no evidence that
Illo
substantially assisted in Plaintiffs discharge.” (Def.’s Mov. Br. at 21-25)
.
Under the NJ LAD, it is unlawful “for any person, whether an emplo
yer or an employee or
not, to aid, abet, incite, compel or coerce the doing of any of the
acts forbidden under this act, or
to attempt to do so.” N.J.S.A. 10:5-12(e). To establish aider and
abettor liability under the NJ
LAD,
a plaintiff must show that “(1) the party whom the defendant aids must
perform a wrongful
act that causes an injury; (2) the defendant must be generally aware
of his role as part of
an overall illegal or tortious activity at the time that he provides
the assistance; [and] (3)
the defendant must knowingly and substantially assist the principal
violation.”
Tarr v. Ciasulli, 181 N.J. 70, 84 (2004) (quoting Hurley v. Atlant
ic City Police Dep ‘t, 174 F.3d
95, 129 (3d Cir. 1999) (internal citations omitted)).
Here, the parties dispute, inter alia, whether Plaintiff can satisfy
the fourth prong of her
aiding and abetting claim—namely, whether there is sufficient
evidence from which a reasonable
jury could determine that Jib “substantially assisted” in Plain
tiffs termination.
7
As the Court has already found that Plaintiff has failed to offer
any evidence from which a reasonable jury could
find national-origin discrimination, the Court need not consid
er whether Illo aided and abetted in CSC’s alleged
discrimination based on Plaintiff’s status as a native of Guinea
, as alleged by Plaintiff. (Compl. 28). See Jackson
¶
v. Del River & Bay Auth., No. 99-cv-3 185, 2001 WL 168988
0, at *22 (D.N.J. Nov. 26, 2001) (Simandle, J.) (“If the
NJAD does not apply to the employer [], then no individ
ual aiding and abetting liability may be found, because an
employer’s liability must be shown before any supervisory
liability for violations can exist.”).
The parties also dispute whether, under the law, a non-superviso
ry employee can be held liable for aider and abettor
liability, (Def.’s Mov. Br. at 22-24; Pl.’s Opp. Br. at 22-23)
. While Defendants argues that “the LAD only permits
individual liability against supervisors” (Def. ‘s Mov. Br.
at 22), Plaintiff states that “there is nothing in the LAD that
restricts individual liability to supervisors” (Pl.’s
Opp. Br. at 23). A review of both state and federal case law
interpreting the NJ LAD’s provision relating to aider and abettor
liability makes clear that Defendants have the better
16
The factors the court must consider to determine whether a defe
ndant provides
“substantial assistance” are:
(I) the nature of the act encouraged, (2) the amount of assistance
given by the supervisor,
(3) whether the supervisor was present at the time of the asser
ted harassment, (4) the
supervisor’s relations to the others, and (5) the state of mind
of the supervisor.
Id. See also Albiaty v. L ‘Urea! USA Products, Inc., No. A-16
21-07T3, 2009 WL 1562948, at * 10
(N.J. Super. Ct. App. Div. June 5, 2009).
Plaintiff argues that Illo substantially assisted in CSC’s discr
imination against Plaintiff by
allegedly: (1) making the discriminatory remark with rega
rds to Plaintiff’s citizenship; (2) failing
to provide proper training to Plaintiff; (3) excluding Plain
tiff from meetings; (4) allegedly
providing wrong instructions to Plaintiff that caused Hunt to blam
e Plaintiff for an error that was
not his fault; and (5) offering a performance review of Plain
tiff that was used to justify placing
Plaintiff on PIP and terminating him. (Pl.’s Opp. Br. at 24).
“{A]n individual employee can only be found liable of
aiding and abetting if ‘actively
involved in the discriminatory conduct.” Feraro-Bengl
e v. Randstad North America, L.P., Civ.
No. 3-1650, 2006 WL 2524170, *12 (D.N.J. Aug. 30, 2006
) (Linares, 3.) (quoting Jones v. Jersey
City Med. Ctr., 20 F. Supp. 2d 770, 774 (D.N.J. 1998)). Plain
tiff does not argue that Illo held any
racial bias against Plaintiff or that I11 made any discr
iminatory remarks to that effect. Nor, for
that matter, does Plaintiff argue that Il1 had knowledg
e of Hunt’s alleged bias against black
argument. That is, non-supervisors of a plaintiff may not
be liable for aiding and abetting under N.J.S.A. 10:5-1
2(e).
§
See, e.g., Tyson v. CIGNA Corp., 918 F. Supp. 836, 841
(D.N.J. 1996) affd, 149 F.3d 1165 (3d Cir. 1998) (“The
few
courts that have addressed this issue have generally
agreed with our conclusion that non-supervisory employ
ees are
not liable.”); see also Herman v. Coastal Corp., 348
N.J. Super 1, 28 (N.J. Super. Ct. App. Div. 2002) (holdin
g that
an “individual to be liable [under N.J.S.A.
10:5-12(e)1 would have to hold a position of supervisor”); see
also Entrot
v. BASF Corp., 359 N.J. Super. 162, 185 (N.J. Super.
Ct. App. Div. 2003). However, because the Court
finds that
Plaintiff cannot show that Jib provided “substantial
assistance” in the ultimate decision to terminate, the
Court need
not consider whether Plaintiff can offer sufficient eviden
ce to show that Illo exercised supervisory author
ity over
Plaintiff.
17
employees. As such, there is no basis from which a reasonabl
e jury could conclude that Illo aided
and abetted in the firing of Plaintiff for unlawful means. See,
e.g., Cowher v. Carson & Roberts,
425 N.J. Super. 285, 304 (N.J. Super. Ct. App. Div. 2012
) (granting summary judgment in favor
of defendant supervisor as to aiding and abetting claim wher plain
e
tiff did not present any evid
ence
of discriminatory conduct on the part of that particular superviso
r and noting that “[a]t most,
[defendant] was ineffective in curing the conduct that plain
tiff claims to have brought to his
attention.”). Accordingly, the Court finds that the abov
e examples of Jib’s assistance in the
alleged discriminatory termination “fall[s] well short of the
‘active and purposeful conduct’ that
[the New Jersey Supreme Court] ha[s] held is required to
constitute aiding and abetting for
purposes of [] individual liability.” Cicchetti v. Morris Cnty.
Sherf,f Office, 194 N.J. 563, 565
(2008) (quoting Tarr, 181 N.J. at 83)).
For these reasons, the Court grants summary judgment in
favor of Defendant Jib with regards
to Plaintiff’s claims of aiding and abetting liability under
the NJ LAD.
11.
Counts III and IV (NJ FLA and FMLA retaliation claim
s)
In addition to claiming race and national origin discr
imination, Plaintiff alleges that
Defendants violated the NJ FLA and the FMLA “[by term
]
inating Plaintiff because he requested
leave to care for a family member with a serious health
condition.” (Compi.
¶J 31, 34)8
The FMLA provides for the following two types of claims
, with distinct statutory frameworks and burdens of proof:
(1) interference with one’s statutory rights, and (2) retaliat
ion against an employee for invoking same. See Erdma
n v.
Nationwide Ins. Co., 582 F.3d 500, 508 (3d Cir. 2009).
Plaintiff has only pleaded a claim of retaliation under
the NJ
FLA and FMLA. Plaintiff has not pleaded that Defend
ants interfered with his protected leave rights. (See
Compi. ¶}
30-3 5). Yet, in Plaintiff’s opposition brief, he appear
s to assert an interference claim, stating that “whether
or not Ms.
Hunt interfered with Mr. Dieng’s request for family
medical leave is a material fact in dispute.” (Pl.’s
Opp. Br. at 67). A plaintiff is not permitted to amend his compla
int through new arguments raised in a motion for
summary
judgment. See, e.g., Belly. City ofPhiladelphia, 275
Fed. App’x 157, 160 (3d Cir. 2008) (unpublished). Accord
ingly,
to the extent Plaintiff now seeks to argue that Defend
ants interfered with his right to protected leave, the
Court will
not consider this argument. See id.; see also Kumar
v. Johnson & Johnson, Inc., No. 12-cv-779, 2014 WL 551254
9,
at *6 (D.N.J. Oct. 31, 2014) (Shipp, J.) (declining to
consider an argument raised by plaintiff for the first time
in her
opposition brief).
18
Under both statutes, an employee is entitled to up to twelve
weeks of protected leave to
care for a family member “who has a serious health cond
ition.” 29 U.S.C.
§ 2612(a)(1)(C);
N.J.S.A. 34:11 B-4. An employer may not terminate or othe
rwise discrimin
ate against an employee
for seeking such leave. 29 U.S.C.
§ 2615(a)(2); N.J.S.A. 34:1 1B-9. “Due to the similarity of the
[FMLA and NJ FLA], courts apply the same standards and
framework to claims under [both
statutes].” Wolpert v. Abbot Laboratories, 817 F. Supp 2d
.
424, 437 (D.N.J. 2011).
“To assert a retaliation claim, a plaintiff must demonstrate
that: (1) he or she is protected
under the FMLA [or NJ FLA], (2) he or she suffered an
adverse employment action, and (3) the
adverse action was causally related to the plaintiff’s exercise
of his or her [protected leave] rights.”
Erdman v. Nationwide Ins. Co., 582 F.3d 500, 508 (3d Cir.
2009) (quoting district court below)
(internal quotations omitted). (quotations omitted) (discussin
g elements of FMLA claim); see also
DePalma v. Building Inspectors Underwriters, 350 N.J. Supe
r. 195, 214 (N.J. Super. Ct. App. Div.
2002) (discussing elements of NJ FLA claim).
As with the NJ LAD claims, the McDonnell Douglas burd
en shifting analysis, discussed
above, is applied to claims of retaliation under the NJ FLA
and FMLA. To reiterate, under this
framework, if a plaintiff makes a prima facie show
ing of retaliation, the burden shifts to the
defendant to articulate a legitimate non-discriminatory
reason for the adverse employment action.
Monaco, 359 F.3d at 300. Finally, the plaintiff mus
t then “discredit the defendant’s proffered
reason for its action or adduce evidence that discrimin
ation was more likely than not a motivating
or determinative cause of the adverse employment
action.” Id.
First, the parties dispute whether Plaintiff meets a prim
a facie case of retaliation. It is
undisputed that Plaintiff has offered sufficient evid
ence to satisfy the first and second prongs of
his retaliation claim. As to the first prong (assertion
of rights), in December 2013, Plaintiff
19
requested four weeks of family leave time to care for his
sick mother in Africa. (SOF
¶
95).
Plaintiff alleges Hunt told him that if he took leave he wou
ld “find someone sitting at [his] desk.”
(SOF
¶J 96,
107). Moreover, Plaintiff alleges that Hunt provided him
with the name of another
employee who had been replaced after taking family leave
. (Pl.’s Opp. Br. at 26; SOF
¶
97a).
Dieng never took the requested leave. (Id.). It is similarly
undisputed that Plaintiff “suffered an
adverse employment decision” in satisfaction of the seco
nd prong when he was terminated.
With regards to the final element of the primafacie claim
for retaliation, the parti
es dispute
whether Plaintiff can prove that his termination was
causally related to his request for leave.
(Def’s Mov. Br. at 27-28; Pl.’s Opp. Br. at 26). “To dem
onstrate aprimafacie case of causation,
[a plaintiff] must point to evidence sufficient to create an
inference that a causative link exists
between [his] FMLA leave and [his] termination.” Lich
tenstein v. Univ. ofPittsburgh Med. Ctr.,
691 F.3d 294, 307 (3d Cir. 2012).
Plaintiff argues that he can show causation by virtue of
the temporal proximity between his
request for leave and the time that the Company bega
n the process of terminating Plaintiff. The
Company contends that the temporal proximity betw
een Plaintiffs request for leave and the
Company’s decision to terminate is insufficient to creat
e an inference of causation. The Third
Circuit has held that “[w]here the temporal proximity
between the protected activity and the
adverse action is ‘unusually suggestive,’ it is sufficient
standing alone to create an inference of
causality to defeat summary judgment.” LeBoon v.
Lancaster Jewish Comm. Ctr. Ass ‘n., 503 F.3d
217, 232 (3d Cir. 2007); see also Clark Cnty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273 (2001).
That said, the Third Circuit has stated its “reluctan[
ce] to infer a causal connection based on
temporal proximity alone.” Budhun v. Reading Hosp
. and Med. Ctr., 765 F.3d 245, 258 (3d Cir.
2014).
20
Plaintiff contends that he has shown a causal link between
his request for leave and
termination by virtue of the temporal proximity between
the time he “requested leave in
November/December 2013, was thereafter subjected to
an Interim Performance Appraisal
necessary to put him on a PIP in early January 2014, put on
the PIP as a predicate to his termination
in early February 2014 and then terminated in late February
2014.” (Pl.’s Opp. Br. at 25). The
Court finds this temporal link to be too tenuous to inde
pendently support Plaintiffs causation
argument.
Although Plaintiff now states that he requested leave in “Nov
ember/December 2013,” the
operative Complaint, as well as Plaintiffs responses to Defe
ndant’s statement of material facts,
indicate that the request for leave took the position that he infor
med Hunt of his wish to take leave
in December 2013, rather than “November/December 2013
.” (Compi.
¶ 13; Pl.’s SOF ¶ 94).
The
Court has reviewed Plaintiffs deposition testimony, however
, and does note that he testified that
he requested leave of Illo in or around November 2013. (Mei
l. Cert., Exh. 1., Dieng Dep. 190:9194:2 1). In any event, Plaintiff has not identified the spec
ific date (be it in November or December
2013) on which he requested leave from Hunt.
The date of this request is significant because as Defendan
ts point out, it is undisputed that
the process of placing Plaintiff on a PIP was actually initia
ted in the early part of November 2013.
(Def.’s Reply Br. at 13-14; SOF
¶J
42-45). At some time prior to November 13, 2014
, the
Company made the decision to place Plaintiff on a PIP.
(SOF ¶ 42). However, “[ajs Plaintiff had
not yet received a formal performance appraisal in
his role as a Production Monitor, CSC
management determined that Plaintiff would need to recei
ve a project appraisal and interim annual
appraisal prior to being placed on the PIP.” (SOF 43).
To that end, on November 13, 2014, Hunt
¶
requested that Illo and Lazev provide her with performan
ce reviews on Plaintiff, which reviews
21
were submitted on November 14 and 15, 2013. (SOF
¶J 44-45). Accordingly, Plaintiff’s temporal
proximity argument falls apart if he cannot show these
actions took place after he requested leave.
Plaintiff cannot rest his prima facie case for causation
solely on a temporal proximity that he has
not sufficiently established.
Where, as here, Plaintiff has not shown that the temporal
proximity
between his request for
leave and the Company placing him on a PIP in
anticipation of his termination is “unusually
suggestive,’ [courts] ask whether ‘the proffered evid
ence looked at as a whole, may suffice to raise
the inference.” Lichtenstein, 691 F.3d at 307
(quoting LeBoon, 503 F.3d at 232 (internal
quotations omitted)). In this case, Dieng has not
set forth any additional evidence to support
causation. Hunt’s representation to Plaintiff that his
job might not be available if he takes leave,
and her recognition that another employee who took
leave was replaced, while likely relevant to a
claim of interference that Plaintiff has not plead
ed, do not support the inference of a causal
connection between Plaintiff’s request for leave and
his ultimate termination approximately three
months later. It is Plaintiff’s position that Hunt told
him that “f’ he takes leave, he will not have
a job when he returns. (Pl.’s Opp. Br. at 26). How
ever, it is undisputed that Plaintiff never took
leave. Accordingly, the causal chain between Hun
t’s statements and Dieng’ s termination has a
broken link—specifically, that Plaintiff did not
actually take the leave that Hunt suggested migh
t
result in his termination.
For the above reasons, the Court grants Defendan
ts’ motion for summary judgment with
respect to Plaintiff’s retaliation claims.
CONCLUSION
For the reasons stated herein, Defendants’ moti
on for summary judgment is denied in part
and granted in part. An appropriate Order acco
mpanies this Opinion.
22
IT IS SO ORDERED.
DATED:
JOSE
UNflb STATES DISTRICT JUD
23
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