ESTOPINAN v. LAKELAND BUS LINES INC. et al

Filing 21

OPINION. Signed by Judge Claire C. Cecchi on 9/22/17. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NELSON ESTOPINAN,

Civil Action No.: 2:16-cv-08684
Plaintiff,
OPINION

v.

I

LAKELAND BUS LiNES, iNC. and LOCAL
UNION 1614, AMALGAMATED TRANSIT
UNION,
Defendants.

CECCHI, District Judge.

I.

INTRODUCTION
This matter comes before the Court on the motions of Lakeland Bus Lines, Inc.

(“Lakeland”) and Local Union 1614, Amalgamated Transit Union (the “Union”) (collectively,
“Defendants”) to dismiss Plaintiff Nelson Estopinan’s (“Plaintiff’) Complaint pursuant to fed. R.
Civ. P. 1 2(b)(6). (ECF Nos. 8, 18). The Court has given careful consideration to the submissions
from each party. Pursuant to Fed. R. Civ. P. 78(b), no oral argument was heard. For the reasons
that follow, Defendants’ Motions to Dismiss are granted.
II.

BACKGROUND
Lakeland employed Plaintiff, a Spanish speaking Hispanic and Pormguese man, as a

mechanic with the title “Mechanic B” on April 19, 1995. (ECF No. I (“Cmpl.”)
On May 16, 2013, Plaintiff underwent hernia surgery. (Id,

¶ 23).

¶

14-15).

Upon his return to work,

he provided a doctor’s note to Lakeland, requesting a “light duty” accommodation. (Id.

¶ 24).

Lakeland told Plaintiff that it did not have any “light duty” assignments, and thus, Plaintiff was

required to perform his regular duties. (Id.

¶J 25-26).

According to Plaintiff, it took him “a few

days to return to the speed and efficiency that [he] had previously worked.” (Id.

¶ 27).

Plaintiff

declares that during the time between his hernia surgery and his return to “full speed and
efficiency” in late June 2013, Lakeland owners and management received complaints from other
employees about his work. (Id.

¶ 2$).

Plaintiff contends that the complaints included that he was

“working slowly” and was “too old for his job.” (Id.).
Plaintiff also maintains that during this time, he was harassed by Lakeland employees who
were also officers of the Union (the “Union Officers”). (Id.

¶J 48-53).

The Union Officers

allegedly used “threatening, profane, and abusive language” related to Plaintiffs national origin.
(Id.

¶J 51-53).

origin.” (Id.

They also allegedly harbored “absolute hatred for the Plaintiffs age and national

¶ 57-59).

On July 13, 2013, Lakeland’s management directed Plaintiff to take a “BPF” test. (Id.

¶ 29).

Plaintiff asserts that the Union Officers pushed Lakeland to administer the “BPF” test, (Id.

¶¶ 54-5 6), which assesses knowledge of codes for a BPF machine used to repair emissions systems
for engines on buses, and was used to ascertain whether Plaintiff was capable of performing his
duties as “Mechanic B.” (Id.

¶J 29-30).

Plaintiff claims that the “BPF” test was only administered

twice over his eighteen years at the company, to him and another Hispanic employee in 2013, and
that it has not been administered again since July 13, 2013. (Id.

¶ 31-32).

Lakeland determined that Plaintiff did not do “well enough” on the “BPF” test to maintain
his position of “Mechanic B.” (Id.

¶ 33).

As a result, on July 18, 2013, Plaintiff: (1) received a

demotion and job title change from “Mechanic B” to “Repairman 3;” (2) received a four dollar per
hour wage decrease; and (3) lost his seniority. (Id.). Additionally, on September 26, 2013,
Plaintiffs shift changed from the overnight shift to the day shift (Id.

2

¶ 34).

Bruce Maclean

(“Maclean”), the Shop Steward at Lakeland, replaced the Plaintiff as the most senior employee.
(Id.

flJ 35,

4$). following these events, Plaintiff filed a grievance with the Union. (Id.

¶ 60).

Plaintiff asserts that the Union neither addressed his grievance nor pursued arbitration to resolve
his claims. (Id.

flJ 60-6 1).

Plaintiff contends that Lakeland’s actions violated the Americans with Disabilities Act
(“ADA”), 42 U.S.C.

§

12111, et seq., the Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C.

§

621, et seq., and Title VII of the Civil Rights Act of 1964 (“Title VII”),

42 U.S.C.

§ 2000e, et seq.’

Additionally, Plaintiff contends that both of the Defendants violated

the ADEA and Title VII by subjecting him to a hostile work environment because of his age and
national origin. (Id.

¶J 111,

113, 117).

Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”), and on September 29, 2016, the EEOC issued a Right to Sue letter
authorizing Plaintiff to commence an action against Defendants.

(ECF Nos. 1-3, 1-4).

On

November 22, 2016, Plaintiff filed his Complaint in this Court. (Cmpl). On January 2, 2017,
Lakeland filed a Motion to Dismiss. (ECF No. 8). On February 17, 2017, the Union filed a
separate Motion to Dismiss. (ECF No. 1$). Plaintiff and Defendants subsequently filed a number
of submissions, which have been duly considered by the Court.
III.

LEGAL STANDARD
A.

Defendants’ Motions to Dismiss Pursuant to Rule 12(b)(6)

for a complaint to survive dismissal pursuant to fed. R. Civ. P. 12(b)(6), it “must contain

Although Plaintiffs Complaint alleges six state law causes of action against Defendants, (Cmpl.
¶J 83-109, 114-117), Plaintiff “requests that the Court dismiss [theseJ causes of action.” (ECF.
Nos. 12-3 at 20, 19-4 at 19). As such, claims IV, V, VI, VII, X, and XI are dismissed.
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sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 67$ (2009) (quoting Bell Ati. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded
factual allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 200$). “factual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. furthermore, “[a] pleading that offers ‘labels and conclusions’

.

.

.

will not do. Nor

does a complaint suffice if it tenders ‘naked assertion[sJ’ devoid of ‘further factual enhancement.”
Iqbal, 556 U.S. at 678 (citations omitted).
IV.

DISCUSSION
A.

Plaintiffs Demotion2
1.

Americans with Disabilities Act

The ADA prohibits an employer from, among other things, “discriminat[ing] against a
qualified individual on the basis of disability in regard to.
of employees..

.

.“

42 U.S.C.

§

.

.

the hiring, advancement, or discharge

12112(a).

In order to survive a motion to dismiss on a discrimination claim under the ADA, “a
plaintiff must show (1) he is a disabled person within the meaning of the ADA; (2) he is otherwise
qualified to perform the essential functions of the job, with or without reasonable accommodations
by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of
discrimination.” Smith v. Pappell, No. 08-1898, 200$ WL 4600770, at *4 (D.N.J. Oct. 8, 2008)
(quoting Shaner v. Synthes, 204 f.3d 494, 500 (3d Cir. 2000)). A qualified individual with a
disability under the ADA is defined as a person with “a physical or mental impairment that

2

Counts I, II, and III regarding Plaintiffs demotion are brought solely against Lakeland.
4

substantially limits one or more major life activities of such individual.” 42 U.S.C.

§

12102(1)(a).

Impairments that last less than six months are generally not considered disabilities under the ADA.
42 U.S.C.

§

12102(3)(B).

The facts alleged by Plaintiff make it clear that he was not “disabled” within the meaning
of the ADA. Plaintiff states that he had a hernia operation in May 2013, (Cmpl.

¶ 23), but a one

time surgery does not constitute a disability under the ADA. See Butler v. BTC Foods Inc., No.
12-492, 2012 WL 5315034, at *3 (E.D. Pa. Oct. 19, 2012) (“Plaintiff has not alleged that his hernia
is anything more than a one-time occurrence. furthermore, an employee’s inability to work for a
period after recovering from surgery does not necessarily support a finding that Plaintiff has a
disability under the ADA.”). Additionally, Plaintiff states that he was able to return to work at his
“full speed and efficiency” within a matter of “a few days.” (Cmpl.

¶ 27).

As such, Plaintiff has

failed to articulate any facts entitling him to relief for a violation of the ADA, and the Court will
dismiss Plaintiffs claim.3 See Smith, 2008 WL 4600770, at *4 (“The admittedly temporary nature
of Plaintiffs medical condition puts her claim outside the scope of the ADA.”).
2.

Age Discrimination in Employment Act

The ADEA prohibits an employer from, among other things, discharging or otherwise
discriminating against any individual “with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age.” 29 U.S.C.

§

623(a)(1).

A plaintiff may establish a claim under the ADEA through either direct or circumstantial
evidence.

In the absence of direct evidence of an ADEA violation, a plaintiff establishes

Because the Court need only analyze a reasonable accommodation claim after a case of
discrimination under the ADA has been adequately pled, the Court need not analyze Plaintiffs
reasonable accommodation claim at this stage. See Kongtcheu v. Constable. No. 12-6872, 2016
WL 270075, at *6 (D.N.J. Jan. 20, 2016), aff’d, 674 F. App’x 216 (3d Cir. 2016.) (“If a plaintiff
cannot establish a prima facie case of discrimination there is no violation of. the ADA. and
no accommodations are necessary.”).
.

5

.

.

.

discrimination by means of the McDonnell Douglas burden shifting analysis. See Burton v.
Teleflex, Inc., 707 f.3d 417, 425-26 (3d Cir. 2013) (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973)). Under McDonnell Douglas, as applied to claims under the ADEA,
a plaintiff must prove that he: “(1) is a member of the protected class, i.e. at least 40 years of age,
29 U.S.C.

§ 63 1(a), (2) is qualified for the position, (3) suffered an adverse employment decision,

and (4) in the case of a demotion or discharge, was replaced by a sufficiently younger person to
create an inference of age discrimination.” Simpson v. Kay Jewelers, Sterling Div., Inc., 142 F.3d
639, 644 n.5 (3d Cir. 1998); see also Burton v. Telefiex, 707 f.3d at 426.
Because Plaintiff has not provided direct evidence of discrimination, the McDonnell
Douglas burden shifting analysis governs his claim. See Petruska v. Reckitt Benckiser, LLC, No.
14-3663, 2015 WL 1421908, at *3 (D.N.J. Mar. 26, 2015). (“Evidence is not direct ‘where the
trier of fact must infer the discrimination on the basis of age from an employer’s remarks.”); see
cilso Greengrass v. Provident Bank, No. 16-4105, 2017 WL 3671303, at *2, n.y (D.N.J. Aug. 25,
2017) (finding that Plaintiffs “stand-alone assertions” that her supervisor engaged in age
discrimination did not constitute direct evidence). Here, the Complaint includes allegations that
Plaintiff was born in 194$, and so was over age 40 when he was demoted in July 2013. (Cmpl.

¶ 14).

further, Plaintiff maintains that he suffered an adverse employment action when he was

demoted from “Mechanic B” to “Repairman 3.” (Id.

¶J

18, 33). See Jones v. Sch. Dist. ofPhila.,

198 f.3d 403, 4 11-12 (3d Cir. 1999) (noting that demotions constitute adverse employment
action), finally, Plaintiffs assertion that he had “eighteen years-worth of seniority,” (Cmpl. ¶J 17,
19), sufficiently pleads his qualifications “by way of his continued employment with Defendant.”
See Santos v. Iron Mountain Film & Sound, No. 12-4214, 2013 WL 6054832, at *4 (D.N.J. Nov.
14, 2013). Plaintiff fails, however, to establish the final McDonnell Douglas requirement, as the

6

Complaint makes no reference to the age of his alleged replacement, Maclean. (Cmpl.

¶ 35).

In

fact, Plaintiff not only fails to establish that Maclean was sufficiently younger than Plaintiff, but
also fails to establish that Maclean specifically replaced Plaintiff in Plaintiffs exact position.
(id.).4 As such, Plaintiff has failed to articulate any facts entitling him to relief for a violation of
the ADEA, and the Court will dismiss Plaintiffs claim.
Title VII of the Civil Rights Act of 1964

3.

Title VII provides that
organization.

.

.

“[ut

shall be an unlawful employment practice for a labor

to discriminate against any individual because of his race, color, religion, sex, or

national origin.” 42 U.S.C.

§

2000e-2(c).

A Title VII discrimination claim is analyzed using a similar framework to that established
in McDonnell Douglas. Under McDonnell Douglas, as applied to claims under Title VII, “a
plaintiff must show that he belongs to a protected class; that he was subject to an adverse
employment action despite being qualified for the position; and that, under circumstances that raise
an inference of discriminatory action, similarly situated persons who are not members of the
protected class were treated more favorably.” See Liggon v. Simmons Pet food, No. 15-1472,
2015 WL 1189561, at *2 (D.N.J. Mar. 13, 2015). Here, Plaintiff alleges that he is Hispanic and
Portuguese. (Cmpl.

¶

14). “Since national origin and race are protected classes under Title VII,

the complaint may be construed to support” a finding that Plaintiff is a member of a protected
class.5 Santos, 2013 WL 6054832, at *4; see also Paradoa v. Philadelphia Hous. Auth., 610 F.

The Complaint states that Maclean replaced Plaintiff as “the most senior employee,” but does
not indicate whether Maclean specifically replaced Plaintiff as “Mechanic B.” (Cmpl. ¶ 35).
Plaintiff describes himself as a Spanish speaking Hispanic and Portuguese man. (Cmpl. ¶J 1415). Defendants argue that Plaintiff fails to state a claim because Plaintiff alleges that he was
discriminated against because of his national origin, Hispanic, which Defendants assert for the
purposes of Title VII is considered race. (ECF Nos. 8 at 15-16, 18 at 7-8). Both race and national
7

App’ x 163, 166 (3d Cir. 2015) (noting that an employee sufficiently alleged that she was a member
of a protected class by way of being Hispanic); see also Sarullo v. US. Postal Serv., 352 f.3d 789,
798 (3d Cir. 2003) (holding that Plaintiff established his status as a member of a protected class
by way of his ethnicity). Further, as discussed above, Plaintiff has sufficiently alleged the second
and third requirements of McDonnell Douglas. Plaintiff, however, fails to establish the final
McDonnell Douglas requirement. Again, Plaintiff does not contend that Maclean specifically
replaced Plaintiff in Plaintiffs exact position, and additionally fails to allege that Maclean is not a
member of the protected classes that Plaintiff purports to be a part of. (Cmpl.

¶ 35).

As such,

Plaintiff has failed to articulate any facts entitling him to relief for a violation of Title VII, and the
Court will dismiss Plaintiffs claim.
B.

Hostile Work Environment6

1.

Age Discrimination in Employment Act

In order to prevail on a claim for hostile work environment under the ADEA, the plaintiff
must show “intentional discrimination because of age, which is (2) pervasive and regular, and
which (3) has detrimental effects that (4) would be suffered by [a] reasonable person of the same
age in the same positon; and (5) respondeat superior liability exists.” Magerr v. City ofPhila., No.
15-4264, 2016 WL 1404156, at *10 (E.D. Pa. Apr. 11, 2016) (alteration in original) (citations
omitted). “[A] complaint asserts a facially plausible hostile work environment claim only if the

origin are protected under Title VII. Because the Complaint alleges discrimination as to Plaintiffs
Hispanic heritage, at this stage the Court finds that Plaintiff has sufficiently pled that he is a
member of a protected class through his race, which would support a Title VII claim of racial
discrimination. In any amended pleading, Plaintiff has the opportunity to further develop such a
claim.
6

Counts VIII and IX regarding Plaintiffs subjection to a hostile work environment are brought
against both Lakeland and the Union.
8

discrimination was alleged to be ‘sufficiently severe or pervasive’ to effectively alter the terms
and conditions of the plaintiffs employment.” Id. at

*

11 (citations omitted). “To determine

whether harassment is sufficiently severe or pervasive to create a hostile work environment,
[courtsJ consider ‘the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.” Id, (citations omitted). Therefore, “simple teasing,’
off-hand comments, and isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of employment.” Clern v. Case Pork Roll
Co.. No. 15-6809, 2016 WL 3912021, at *5 (D.N.J. July 18, 2016) (citation omitted).
Here, Plaintiff claims that he was subject to a hostile work environment due to his age. As
to Lakeland, Plaintiff argues that Lakeland gave him the “BPF” test, demoted him, reduced his
wages, and changed his shift because of his age. (Cmpl.

¶J 37,

40, 43, 46). As to the Union,

Plaintiff maintains that the Union Officers had “absolute hatred for Plaintiffs age,” believed he
was too old for his job, and did not address the grievance that Plaintiff filed about Lakeland. (Id.

¶ 28, 57-59, 60-62,

103). As to both Defendants, Plaintiff believes that they were “in cahoots” to

discriminate against him based on his age. (Id.

¶ 64).

Despite Plaintiffs allegations, however, the

Complaint does not allege that such purported discrimination was severe or pervasive. Plaintiff
cites to no facts pertaining to “the frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” See Magerr, 2016 WL 1404156, at *11.
Without more information, Plaintiffs allegations are insufficient to sustain a hostile work
environment claim and as such, the Court will dismiss Plaintiffs claim.

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2.

Title VII of the Civil Rights Act of 1964

Plaintiff additionally claims that he was subject to a hostile work environment due to his
national origin. In order to prevail on a hostile work environment claim under Title VII, a plaintiff
must show the same elements as a hostile work environment claim under the ADEA. See Reynolds
v. Aria Health, No. 12-2954, 2013 WL 2392903, at *7 (E.D. Pa. May 31, 2013) (“[There are]” five
elements necessary to establish a successful hostile work environment claim: (1) the plaintiff
suffered intentional discrimination because of his or her membership in the protected class; (2) the
discrimination was pervasive and regular; (3) the discrimination detrimentally affected the
plaintiff; (4) the discrimination would have detrimentally affected a reasonable person of the same
protected class in that position: and (5) the existence of respondeat superior liability.”).
Here, Plaintiff argues that Lakeland was “a hot bed for racial and national origin
inappropriate language and activity directed towards the Plaintiff.” (Cmpl. ¶ 22). Plaintiff further
argues that Lakeland gave him the “BPF” test, demoted him, reduced his wages, and changed his
shift because of his national origin. (Id.

¶J 38,

41, 44, 47). As to the Union, Plaintiff maintains

that the Union Officers used “threatening, profane, and abusive language relating to [his] national
origin,” had “absolute hatred for the Plaintiffs
grievance that Plaintiff filed about Lakeland. (Id.

.

.

.

national origin,” and did not address the

¶J 5 1-53, 57-59, 60-62).

As to both Defendants,

Plaintiff believes that they were “in cahoots” to discriminate against Plaintiff based on his national
origin. (Id.

¶ 65).

Despite Plaintiffs allegations, however, the Complaint does not allege that such

purported discrimination was severe or pervasive. Plaintiff cites to no facts pertaining to whether
the discriminatory conduct was frequent, physically threatening, humiliating, or disruptive. See
Reynolds, 2013 WL 2392903, at *7 Without more information, Plaintiffs allegations do not
support a hostile work environment claim and as such, the Court will dismiss Plaintiffs claim.

10

a

V.

CONCLUSION
For the foregoing reasons, Defendants’ Motions to Dismiss are granted. To the extent

Plaintiff can cure the pleading deficiencies by way of amendment, he may file an amended
complaint within thirty (30) days of the date of this Opinion. An appropriate Order follows this
Opinion.

c:Z

DATED: September 22, 2017

—

CLAIRE C. CECCHI, U.S.D.J.

11