PENN v. EXXONMOBIL RESEARCH AND ENGINEERING COMPANY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARC PENN, : Hon. Joseph H. Rodriguez

Plaintiff, : Civil Action No. 17-3140

v. : OPINION

EXXONMOBIL RESEARCH AND

ENGINEERING COMPANY, :

Defendant. :

This matter is before the Court on a motion for summary judgment filed by

Defendant ExxonMobil Research and Engineering Company (“EMRE”). Having

considered the parties’ submissions, the Court decides this matter without oral

argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons stated

below, this Court grants Defendant’s motion for summary judgment.

I. Background

Plaintiff Marc Penn, who is African-American, has been employed by Defendant

since April 2006 at its Paulsboro, New Jersey facility. He was primarily supervised by

Mike Carrocino, a Facility Manager, and Ben McLaughlin, Building Services Supervisor;

they are Caucasian. He alleged the following facts in his Complaint. [Dkt. No. 1]

In or about August of 2012, Plaintiff expressed concerns of discrimination

internally and externally (including through the Equal Employment Opportunity

Commission “EEOC”). In or about December of 2012, he was returned to the “GREF

group” expecting a full and final resolution to any prior concerns. He did not initiate a

lawsuit based upon his 2012 EEOC Charge.

Following his return to the GREF Group, however, Plaintiff alleges that he was

subjected to a hostile work environment, multiple discriminatory and retaliatory

actions, and antagonism because of his race and complaints of discriminatory

treatment. Through 2014, Plaintiff states that he was: at times denied access into the

workplace (through lack of card access); arbitrarily removed from multiple committees,

including the Safety Committee and United Way Committee; not scheduled as requested

or given the same scheduling accommodations as similarly situated coworkers, at times

being denied the ability to leave work for a scheduled appointment; not given previously

assured training despite multiple requests; spoken to in a condescending and

inappropriate manner when he was addressed in the workplace; and Plaintiff further

alleges that his e-mail and correspondence regarding workplace matters were ignored.

Plaintiff also alleges that: without adequate factual or legal basis, Defendant

mandated Plaintiff undergo a fitness for duty evaluation as a condition of continued

employment wherein he was removed from work on or about May 17, 2014; he

underwent an evaluation with a psychologist selected by Defendant after being out of

work for a period of time; and, notwithstanding the psychologist finding no rational

basis for Plaintiff’s referral or continued need to remain out of work, Plaintiff was out of

work until about mid-August 2014 (a period of approximately three months).

In the second half of June 2018, Plaintiff allegedly was threatened in writing by

Defendant’s management with being considered to have resigned for expressing that he

did not want Defendant to seek more detailed medical information after Defendant’s

psychologist had already issued a detailed report outlining that Plaintiff posed no threat

and should not be kept out of work. Upon returning to work from his “forced” leave after

having raised numerous concerns of his ongoing mistreatment, Plaintiff was issued a

five-day suspension in August of 2014 (to which he expressed concerns about being held

responsible for a policy violation that took place while on leave and which was not

enforced against others). Plaintiff was at times requested or required to give daily and

weekly updates about certain aspects of his job that were not sought from others.

Finally, Plaintiff alleges he was not given fair, equal, or actual overtime hours to work, in

contrast with others. The types of treatment Plaintiff experienced allegedly continued

through 2015 and until his supervision changed.

Plaintiff filed the Complaint in this action on May 4, 2017, asserting claims for

racial discrimination, retaliation, and hostile work environment under 42 U.S.C. § 1981,

the New Jersey Law Against Discrimination (“NJLAD”), and Title VII of the Civil Rights

Act of 1964. [Dkt. No. 1]. Defendant filed an Answer to the Complaint on July 18, 2017.

[Dkt. No. 7]. Defendant filed a Motion for Summary Judgment on all of Plaintiff’s claims

on June 29, 2018. [Dkt. No. 30]. The Motion has been fully briefed by the parties.

II. Summary Judgment Standard

“Summary judgment is proper if there is no genuine issue of material fact and if,

viewing the facts in the light most favorable to the non-moving party, the moving party

is entitled to judgment as a matter of law.” Pearson v. Component Tech. Corp., 247 F.3d

471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986));

accord Fed. R. Civ. P. 56 (a). Thus, the Court will enter summary judgment in favor of a

movant who shows that it is entitled to judgment as a matter of law, and supports the

showing that there is no genuine dispute as to any material fact by “citing to particular

parts of materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations . . . admissions, interrogatory

answers, or other materials.” Fed. R. Civ. P. 56 (c)(1)(A).

An issue is “genuine” if supported by evidence such that a reasonable jury could

return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a

dispute about the fact might affect the outcome of the suit. Id. In determining whether a

genuine issue of material fact exists, the court must view the facts and all reasonable

inferences drawn from those facts in the light most favorable to the nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Initially, the moving party has the burden of demonstrating the absence of a

genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met

this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts

showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place,

Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported

motion for summary judgment, the nonmoving party must identify specific facts and

affirmative evidence that contradict those offered by the moving party. Anderson, 477

U.S. at 256-57. “A nonmoving party may not ‘rest upon mere allegations, general denials

or . . . vague statements . . . .’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of

Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc.,

934 F.2d 497, 500 (3d Cir. 1991)). Indeed,

the plain language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial.

Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot

be genuinely disputed by showing that “an adverse party cannot produce admissible

evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed.

R. Civ. P. 56(c)(2).

In deciding the merits of a party’s motion for summary judgment, the court’s role

is not to evaluate the evidence and decide the truth of the matter, but to determine

whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility

determinations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N.

Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

III. Discussion

The NJLAD “was enacted with the express purpose of protecting civil rights,

particularly in the area of employment discrimination, where the NJLAD declares that

the opportunity to gain employment without fear of discrimination is a civil

right.” Thurston v. Cherry Hill Triplex, 941 F. Supp. 2d 520, 534 (D.N.J.

2008); see Fuchilla v. Layman, 537 A.2d 652, 660 (N.J. 1988) (“[T]he overarching goal

of the [NJLAD] is nothing less than the eradication ‘of the cancer of discrimination.’”

(quoting Jackson v. Concord Co., 253 A.2d 793, 799 (N.J. 1969)))

The New Jersey Supreme Court has explained that the NJLAD is broad remedial

legislation, designed to prohibit employers from discriminating against employees with

respect to the terms and conditions of their employment on the basis of a protected

characteristic, such as race, religion, age, sex, and disability. See Quinlan v. Curtiss-

Wright Corp., 8 A.3d 209, 220 (N.J. 2010) (“We have been vigilant in interpreting the

[NJLAD] in accordance with that overarching purpose, and in recognition that it is . . .

remedial legislation that was intended to be given a broad and liberal

interpretation.”); see also N.J. Stat. Ann. § 10:5-12(a) (listing the various protected

classes under the NJLAD).

Workplace discrimination claims brought under the NJLAD are analyzed under

the flexible burden-shifting framework established by the United States Supreme Court

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Viscik v. Fowler Equipment

Co., 800 A.2d 826 (N.J. 2002) (adopting McDonnell Douglas framework for NJLAD

employment discrimination cases); Schurr v. Resorts Int'l Hotel, Inc., 196 F.3d 486, 493

(3d Cir.1999) (“Analysis of a claim made pursuant to the NJLAD generally follows

analysis of a Title VII claim.”). Additionally, “the substantive elements of a claim under

section 1981 generally identical to the elements of an employment discrimination claim

under Title VII.” Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009). Accordingly,

the Court will analyze Plaintiff’s several race discrimination claims simultaneously.

A. Plaintiff’s Racial Discrimination Claims

Defendant moves for Summary Judgment on Plaintiff’s racial discrimination

claims under Section 1981, Title VII, and NJLAD arguing that Plaintiff cannot establish

a prima facie case for his disparate treatment claims because (1) he did not suffer an

actionable adverse employment action, and (2) even if Plaintiff had, he cannot prove the

ultimate inference of discrimination. Defendant’s motion for summary judgment further

provides that even if a prima face case for discrimination against it exists, Plaintiff’s

claim fails because he cannot establish that Defendant’s legitimate non-discriminatory

reasons for its actions are pretext.

Under the McDonnell Douglas framework, a plaintiff has the initial burden of

establishing a prima facie case of discrimination by pointing to evidence in the record

sufficient to create a genuine factual dispute that “s/he suffered an adverse employment

action . . . under circumstances that could give rise to an inference of intentional

discrimination” on the basis of race. Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir.

2008); accord Iadimarco v. Runyon, 190 F.3d 151, 163 (3d Cir. 1999) (requiring

plaintiff who alleges reverse race discrimination to present “sufficient evidence to allow

a reasonable fact finder to conclude . . . that the defendant treated [plaintiff] less

favorably than others because of his race”).

The oft-cited elements of a prima facie case of racial discrimination are that a

plaintiff: (1) is a member of a protected class; (2) was qualified for the position; (3)

suffered an adverse employment decision; and (4) the adverse employment action was

made under circumstances that give rise to an inference of unlawful discrimination.

Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 412 (3d Cir. 1999).

If a plaintiff makes out a prima facie case, the burden shifts to the defendant

employer to provide a legitimate, non-discriminatory reason for its employment

decision. McDonnell Douglas, 411 U.S. at 802-03. If the employer meets its burden of

articulating a legitimate, nondiscriminatory reason for the adverse employment action,

the burden shifts back to the plaintiff to demonstrate that the employer’s proffered

reason for the adverse employment action was pretextual. Id. To establish pretext under

the summary judgment standard, a plaintiff must either (1) offer evidence that “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) present

evidence sufficient to support an inference that “discrimination was more likely than not

a motivating or determinative cause of the adverse employment action.” Fuentes v.

Perskie, 32 F.3d 759, 762 (3d Cir. 1994). To meet that burden, a plaintiff “cannot simply

show that the employer’s decision was wrong or mistaken.” Id. at 765.

In the present case, there is no dispute that (1) Plaintiff is a member of a

protected class, as he is an African American; and (2) that Plaintiff was qualified for his

position. The first issue to be decided is whether Plaintiff has suffered an adverse

employment action. An adverse employment action is “a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

Plaintiff argues that his alleged adverse employment actions consist of the

following: Defendant forced Plaintiff to undergo a fitness for duty exam and kept him

out of work for three months within weeks of his complaint of race discrimination and

retaliation; the day Plaintiff returned to work, Defendant suspended him for five days,

unpaid, for a violation of safety policy that occurred prior to his “forced leave,” and a

white colleague who violated the same safety policy was not suspended. However,

Plaintiff’s opposition brief focuses solely on the argument that he suffered an adverse

employment action when Defendant suspended him without pay. See [Dkt. No. 34, Pl.

Op. Brf. at 24].

To be sure, Plaintiff’s suspension is the only employment action he alleges that is

sufficiently severe enough to give rise to an adverse employment action, “one which is

serious and tangible enough to alter an employee’s compensation, terms, conditions, or

privileges of employment.” Fiorentini v. William Penn Sch. Dist., 665 F. App'x 229, 234

(3d Cir. 2016) (quoting Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)).1 Here,

1 Plaintiff’s fitness for duty evaluation was fully paid. Defendant required the evaluation prior to

any disciplinary action for Plaintiff’s admitted violation of a safety rule. “Merely requiring an

employee to submit to a medical or psychiatric examination is not an adverse employment

action.” Diaz v. Lezanski, No. CIV.A. 9-223 WJM, 2011 WL 2115671, at *6 (D.N.J. May 25, 2011)

(citing Caver v. City of Trenton, 420 F.3d 243, 256 (3d Cir.2005)); Jones v. Se. Pa. Transp.

Auth., 796 F.3d 323, 326 (3d Cir. 2015) (noting that it agreed with other courts of appeals that

“unanimously concluded that placing an employee on paid administrative leave where there is

no presumption of termination is not an adverse employment action” (citations omitted)

(internal quotations omitted)); see also Matthews v. Potter, No. 09 C 3212, 2010 WL 5060246,

Plaintiff’s five-day suspension (ultimately a three-day suspension) was unpaid. While a

paid suspension, without more, may not constitute an adverse employment action, the

Third Circuit has held that an unpaid suspension does rise to an adverse employment

action. Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 326-327 (3d Cir. 2015) (analyzing

whether employee’s unpaid suspension was a product of discrimination, but holding a

“suspension with pay, ‘without more,’ is not an adverse employment action under the

substantive provision of Title VII.” (citations omitted)).

Defendant stresses that Plaintiff’s suspension, though unpaid, is not an adverse

employment action because Plaintiff admits to the wrongdoing that Defendant gives as

its reason for the suspension. To this extent, Defendant relies on Burton v. PA State

Police, 612 F. App’x 124, 128 (3d Cir. 2015) for the proposition that “an unpaid

suspension was not an adverse employment action in part because the employee

admitted he was suspended for violating policy.” See Def. Supporting Brf. at 2. The

Court finds that Defendant’s reliance is misplaced. Burton did not specifically address

whether the employee’s two-day unpaid suspension was an adverse employment action,

rather it proceeded to hold the suspension was not racially motivated. See Id. Moreover,

an unpaid suspension undeniably alters an employee’s compensation. Here, the record

also indicates that while “the terms and conditions of employment ordinarily include the

possibility that an employee will be subject to an employer's disciplinary policies in

appropriate circumstances,” Plaintiff disputes whether this was an appropriate

circumstance for disciplinary action. See Jones, 796 F.3d at 326 (quoting Joseph v.

at *5 (N.D. Ill. Dec. 6, 2010) (“Requiring an employee to undergo a psychiatric evaluation as

part of a fitness-for-duty assessment is also not an adverse employment action.” (citing Caver,

420 F.3d at 256).

Leavitt, 465 F.3d 87, 91 (2d Cir. 2006)). Therefore, the Court finds because Plaintiff’s

suspension was unpaid and because Plaintiff disputes the appropriateness of

disciplinary action taken, the Court cannot rule that Plaintiff has not experienced an

adverse employment action.

Even if Plaintiff has experienced an adverse employment action, Defendant

argues that summary judgment is still proper because Plaintiff cannot establish an

inference of discrimination, the final element of Plaintiff’s prima facie case. The Court

agrees.

The inference of discrimination may be presented in the form of evidence of

disparate treatment, “whereby a plaintiff shows that [he or she] was treated less

favorably than similarly situated employees” of a different race. Doe v. C.A.R.S. Prot.

Plus, Inc., 527 F.3d 358, 366 (3d Cir. 2008). Such inference of discrimination may be

supported in several ways, including, but not limited to, comparator evidence, evidence

of similar racial discrimination of other employees, or direct evidence

of discrimination from statements or actions by supervisors

suggesting racial animus. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511-12

(2002); Golod v. Bank of Am. Corp., 403 F. App’x 699, 703 n.2 (3d Cir. 2010); Vega v.

City of Brunswick, 171 F. App’x 930, 935-36 (3d Cir. 2006) (“[W]here a plaintiff claims .

. . racial discrimination in employment, the plaintiff may present evidence of the

treatment of employees of other races as a basis for the trier of fact to infer that the

differing treatment meted out to the plaintiff was based on race.”).

Thus, a claim of racially disparate treatment requires the plaintiff employee to

prove a discriminatory motive, directly or indirectly. Jason v. Showboat Hotel & Casino,

747 A.2d 802, 807 (N.J. Super Ct. App. Div. 2000). That is, “a prima facie case must

support the inference that Plaintiff was discriminated against because of his race, color,

or national origin--it is not prima facie discrimination to simply be a member of a

protected class who is subjected to a negative employment decision.” Rene v. Lidestri

Foods, Inc., No. 09-3908 (RMB), 2010 WL 4807050, at *6 (D.N.J. Nov. 17, 2010).

Therefore, the Plaintiff must demonstrate that a causal connection between the alleged

disparate treatment and his race exists. Here, the record lacks any such casual

connection.

First, Plaintiff’s general averments that his Caucasian colleagues were treated

more favorably in the work place fail to establish any genuine dispute of material fact

that would give rise to an inference of discrimination. Plaintiff argues that his

supervisors “treat his Caucasian coworkers more favorably, they would joke and jovial

with them, but with Mr. Penn, they were short and curt.” Pl. Opp. Brf. at 27. Despite

Plaintiff’s conclusory statement, Defendant has offered evidence that the Plaintiff was

not treated differently than other employees outside of his protected class. The Plaintiff

concedes that he has been disciplined four to five times during his employment with

Defendant. When asked what other employees he knew of who were disciplined more

than four or five times, Plaintiff responded, “they been retired or fired.” Pl. Dep. 106:3-

11. Plaintiff could also recall a specific Caucasian employee, under the same supervision

as Plaintiff (Mr. Carrocino), who was forced to resign by the company. Id. at 107. Aside

from this one employee, Plaintiff did not know anyone else that was disciplined four or

five times, nor was he aware of anyone who was disciplined three or four times. Id at

107:8-10; 108:1-3.

Next, Plaintiff specifically names five Caucasian employees who engaged in

similar misconduct but were allegedly treated more favorably by the Defendant. “[T]o be

considered similarly situated, comparator employees must be similarly situated in all

relevant respects.” Wilcher v. Postmaster Gen., 441 Fed. Appx. 879, 881–82 (3d

Cir.2011). In determining whether someone can be considered similarly situated, “courts

tend to consider whether the plaintiff and the comparator had similar job

responsibilities, were subject to the same standards, worked for the same supervisors,

and engaged in comparable misconduct.” Ewell v. NBA Properties, Inc., 94 F. Supp. 3d

612, 624 (D.N.J. 2015). Specifically, “[w]hether similarly situated nonmembers of a

protected class were treated more favorably than a member of the protected class, the

focus is on the particular criteria or qualifications identified by the employer as the

reason for the adverse action. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d

639, 647 (3d Cir. 1998).

Accordingly, only the employees who engaged in comparable misconduct that

warranted Plaintiff’s suspension should be considered in the Court’s analysis. To that

effect, only two employees offered as comparators out of five may potentially serve as

similarly situated nonmembers of Plaintiff’s protected class:2 Dan Little and Scott

Defrank. Both Mr. Little and Mr. Defrank are Caucasian employees who worked as

electricians in the same group as Plaintiff, under the same supervision, who engaged in

comparable misconduct. Def SUMF ¶¶ 81, 83; Pl. Res. to Def. SUMF.

Plaintiff’s argument that Mr. Defrank is a similarly situated employee who was

treated more leniently does not present a sufficient basis for an inference of

2 The other three comparators offered by the Plaintiff are Jay Berry, Greg Grey, and Lou

DeCicco. All three employees are not a similarly-situated. Each employee did not engage in

conduct comparable to Plaintiff. Instead, these three employees engaged in altercations with

coworkers and were not cited for safety violations. Furthermore, Mr. Grey and Mr. DeCicco’s

were not instrument technicians, and Mr. Grey and Mr. Berry did not report to Mr. McLaughlin.

Notably, Mr. Berry was even suspended for four weeks without pay for his inappropriate actions.

See Declaration of Joshua Bryat [Dkt. No. 37-3]; [Dkt. Item 38 (Ex. G)].

discrimination. Mr. Defrank did not violate one of the Life Saving safety rules Plaintiff

was suspended for violating. Mr. Defrank violated one of Defendant’s ladder rules for

standing too high on a ladder. As a result, Mr. Defrank received verbal coaching. In the

context of this case, to be similarly situated means “showing that the two employees . . .

engaged in similar conduct without such differentiating or mitigating circumstances as

would distinguish their conduct or the employer's treatment of them.” Opsatnik v.

Norfolk S. Corp., 335 F. App'x 220, 223 (3d Cir. 2009) (quoting Radue v. Kimberly–

Clark Corp., 219 F.3d 612, 617–18 (7th Cir.2000)).

Plaintiff’s argument concerning Mr. Little similarly fails to establish an inference

of discrimination. It is undisputed that Mr. Little was involved in the very incident that

resulted in Defendant’s suspension. Mr. Little, like the Plaintiff, failed to obtain a work

permit. He was not suspended, rather he only received a written warning. Nonetheless,

Defendant provides a valid uncontested reason for the difference in consequences given

to the two employees. Given that Plaintiff was “lead worker” and Mr. Little was ground

watch and safety watch, Defendant argues that it was Plaintiff’s responsibility to obtain

the work permit. Mr. Little was not actually performing the job that warranted a permit;

according to Defendant he was not the employee responsible for obtaining the permit.

Therefore, Mr. Little was given a written warning for “allowing the job to continue in an

unsafe manner and not stopping the job.” Def. SUMF ¶ 65. Plaintiff does not dispute

this. Pl. Resp. to Def. SUMF ¶ 65. Ultimately, Defendant decided to suspend Plaintiff

due to the seriousness of the safety violation, which his supervisor believed was an

intentional violation. Id. at ¶ 64; Def. SUMF ¶ 64.

At the time of the violation, Plaintiff did not claim that Mr. Little was the lead

worker; in fact, Plaintiff later testified that Mr. Little was his “sidekick” on that

particular job.3 Pl. Dep. 211:11-12. Therefore, plaintiff provides no evidence that their

acts were of such “comparable seriousness” as to justify questioning the difference in

treatment of the two employees and further create an inference that Defendant was

suspended because of his race. See Anderson v. Haverford Coll., 868 F. Supp. 741, 745

(E.D. Pa. 1994); Burton, 612 F. App'x at 128 (holding that employee’s 2-day unpaid

suspension was not racially motivated under circumstances where plaintiff

acknowledged his suspension was a result of several infractions and “did not put forth

evidence of similarly situated employees receiving less severe punishments”).

Furthermore, Mr. Guth is the one who reported Plaintiff’s failure to obtain a work

permit to his supervisors. Plaintiff does not contend that Mr. Guth has discriminatory

animus against him. EMRE Human Resources also joined the investigation into

Plaintiff’s conduct. The HR representative who supported the ultimate decision to

suspend Plaintiff, is an African-American employee, Mr. Alfred. While alone this fact

would not defeat an inference of discrimination, it may “weaken any possible inference.”

Dungee v. NE Foods, Inc., 940 F. Supp. 682, 688, n.3 (D.N.J. 1996) (“The fact that the

final decision maker and both interviewers are members of the plaintiff's protected class

(women) weakens any possible inference of discrimination. This reasoning has been

applied to weaken the inference of discrimination in sex, race, and age cases.” (citations

omitted)). Without more, Plaintiff has not offered sufficient evidence as a basis for a jury

“to infer that the differing treatment meted out to the plaintiff was based on race.” Vega,

3 Plaintiff contends that it is the Authorizer’s responsibility to issue work permits but it is clear

from the record that regardless of the process, Plaintiff knew that the work he was doing was not

to be conducted without a permit and he himself was the employee performing the work

(including the risks that qualified the job for a work permit under EMRE safety rules).

171 F. App’x at 935-36. Therefore, the Court grants summary judgment as to all of

Plaintiff’s racial discrimination claims.

B. Plaintiff’s Retaliation Claims

To maintain a claim for retaliation under § 1981 and Title VII, Plaintiff must

establish a prima facie case by tendering evidence that “(1) he engaged in protected

activity, (2) his employer took an adverse employment action against him, and (3) there

was a causal connection between his participation in the protected activity and the

adverse employment action.” Estate of Oliva v. N.J., Dep’t of Law & Pub. Safety, Div. of

State Police, 604 F.3d 788, 798, 798 n.14 (3d Cir. 2010).4

Plaintiff alleges that his protected activity consisted of: filing an EEOC charge of

race discrimination against Defendant in 2012; complaining to his supervisor, manager,

and human resources about race discrimination in January of 2014; complaining in

writing and verbally to his supervisor, manager, and human resources about race

discrimination and retaliation in February of 2014; verbally complaining about race

discrimination and retaliation in April of 2014, and complaining about Defendant’s

treatment of him upon return from his allegedly forced fitness for duty evaluation.

There is no dispute that Plaintiff establishes that he has engaged in protected activity.

Defendant moves for summary judgment on Plaintiff’s retaliation claims arguing

that Plaintiff cannot show that (1) Defendant took an adverse employment action

against him, or (2) a causal connection between his protected activity and any alleged

4 Similarly, to establish a prima facie case of retaliation under the NJLAD, a plaintiff must show:

(1) he belonged to a protected class; (2) he engaged in protected activity, which was known to

the employer; (3) he was subjected to an adverse employment consequence; and (4) a causal

link exists between the protected activity and the adverse employment consequence. Victor v.

State, 4 A.3d 126, 141 (N.J. 2010).

adverse employment action exists. Based on the record, the Court finds Plaintiff has

provided sufficient evidence of an adverse employment action; however, for the reasons

that follow the Court finds that Plaintiff has not adequately established causation.

For purposes of retaliation claims, a plaintiff must establish that s/he was

subjected to a materially adverse employment action. A materially adverse employment

action is one that would “dissuade a reasonable worker from making or supporting a

charge of discrimination.” Burlington Northern & Sana Fe Ry. V. White, 548 U.S.53, 68

(2006). The Court must “examine the challenged conduct ‘from the perspective of a

reasonable person in the plaintiff’s position, considering all the circumstances.’” Daniels

v. Sch. Dist. of Philadelphia, 776 F.3d 181, 195 (3d Cir. 2015) (quoting Burlington N. &

Santa Fe Ry. Co., 548 U.S. at 71). As stated by the Supreme Court of the United States

“[t]he anti[-]retaliation provision protects an individual not from all retaliation, but

from retaliation that produces an injury or harm.” Burlington Northern, 548 U.S. at 67.

Plaintiff first alleges his fitness for duty evaluation was an adverse employment

action. Plaintiff received his full salary while on leave due to the evaluation and does not

successfully allege that this evaluation altered the terms and conditions of his

employment in anyway. Def. SUMF ¶ 71. It is also undisputed that Plaintiff returned to

the same position after his leave. Id. Therefore, Plaintiff’s fitness for duty evaluation did

not result in any harm to Plaintiff’s employment and was not serious or tangible enough

to reasonably be considered adverse in the retaliatory context. Caver v. City of Trenton,

420 F.3d 243, 256 (3d Cir. 2005) (“ordering [employee] to see a psychiatrist, without

more, did not adversely affect his status as an employee.”); Benningfield v. City of

Houston, 157 F.3d 369, 376 (5th Cir., 1998) (referral of police officer for psychological

testing to determine fitness for duty “was not an adverse employment action. Rather,

the referral was designed to gather facts to form the basis for an employment

decision.”). Here, the evaluation was designed to ensure Plaintiff was fit to work and

provide information to Defendant before initiating his suspension. Def. SUMF ¶ 67.

Plaintiff’s suspension, however, resulted in loss of compensation as it was unpaid.

Therefore, Plaintiff’s suspension will again amount to an adverse employment action, as

it might dissuade a reasonable person from making or supporting a charge of

discrimination. Jones, 796 F.3d at 326 (considering an unpaid suspension to be

materially adverse).

Next, Plaintiff alleges that he can establish the second element of retaliation,

causation, through (1) the temporal proximity between his protected activity and

adverse action; and (2) “via pretext” Pl. Op. Brf. at 17-18. To assess causation, the court

may consider any “unusually suggestive” temporal proximity between the protected

activity and alleged adverse employment action. Marra v. Philadelphia Hous. Auth.,

497 F.3d 286, 302 (3d Cir. 2007), as amended (Aug. 28, 2007). In addition to looking at

temporal proximity, the Court must consider “with a careful eye . . . the specific facts

and circumstances encountered.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279

n.5 (3d Cir. 2000).

Plaintiff’s first complaint was in August of 2012, when Plaintiff expressed

concerns of discrimination internally and reported to the EEOC. Plaintiff brings suit

based on events occurring close to two years later in 2014. Thus, Plaintiff cannot

establish a causal connection based solely on his initial participation in protected

activity. Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 760 (3d Cir.

2004) (temporal proximity of even two months is not unusually suggestive). Plaintiff

does not argue otherwise; alternatively, Plaintiff’s argument rests on his internal

complaint of discrimination and retaliation with Defendant on April 23, 2014.

Weeks after this complaint, on or about May 17, 2014 Defendant required

Plaintiff to undergo a fitness for duty evaluation. Plaintiff returned to work about three

months later, after which he was given the suspension. Plaintiff’s suspension is the

adverse action at issue; his suspension commenced months after his complaint.

Regardless, the Third Circuit has held “that a temporal proximity greater than ten days

requires supplementary evidence of retaliatory motive” see Blakney v. City of

Philadelphia, 559 F. App'x 183, 186 (3d Cir. 2014) (citing Farrell v. Planters Lifesavers

Co., 206 F.3d 271, 280 (3d Cir.2000)). Moreover, “[t]he mere fact that [an adverse

action] occurs subsequent to the lodging of a complaint is ordinarily insufficient to

satisfy the plaintiff’s burden of demonstrating a causal link between the two events.”

Chambers v. Heidelberg USA, Inc., No. 04–583, 2006 WL 1281308, at *11 (D.N.J. May

5, 2006); see also El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 177, 887 A.2d

1170, 1189 (App. Div. 2005) (“we decline the invitation, implicit in plaintiff's arguments,

to find that filing a complaint about a supervisor completely insulates an employee from

adverse employment actions thereafter. We decline to adopt her argument that mere

temporal coincidence supports a cause of action where an objective view of the facts

simply does not.”).

Plaintiff alleges that he can further establish an inference of retaliatory motive by

showing the alleged reason for his adverse employment action was pretextual. But the

record reflects that Plaintiff does not dispute the core misconduct (failing to obtain a

work permit) from which his adverse employment action arose. More specifically,

Plaintiff does not dispute Defendant’s ultimate reason for his suspension, a violation of

EMRE’s safety policy. Def. SUMF ¶ 64. Furthermore, Defendant provides an extensive

record and testimony regarding Plaintiff’s performance and behavioral issues as an

employee. Indeed, other employees outside of those alleged by Plaintiff to have been

treating him differently, have questioned his conduct. See [Dkt. No. 31-20; 30; 19].

Importantly, the record in this case also affords ample evidence that Plaintiff’s overall

relationship with his supervisors after his April complaint was not “qualitatively

different” than prior to that complaint, nor prior to his initial 2012 complaint.5 “If

Plaintiff cannot show that the relationship in question became ‘qualitatively different’

after the protected activity, he cannot meet his burden” of retaliatory animus. Sampath

v. Concurrent Techs. Corp., No. CIVA 3:03-CV-264, 2008 WL 868215, at *35 (W.D. Pa.

Mar. 31, 2008), aff'd, 299 F. App'x 143 (3d Cir. 2008) (quoting LeBoon v. Lancaster

Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 233 (3d Cir. 2007)).

According to the record, tension between Plaintiff and his supervisors existed

some time before his April complaint. Indeed, Plaintiff complained internally on or

around January 14, 2014, January 27, 2014, February 3, 2014, and February 17, 2014.

Pursuant to these complaints, Plaintiff often disagreed with his supervisors’ disciplinary

actions against him, which alone does not infer his supervisors’ actions were a result of

his protected activity. See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217,

234 (3d Cir. 2007) (“[A]lthough the evidence in the record clearly shows a tense

relationship between [the plaintiff] and [supervisor], it does not sustain the inference

5 See, e.g., Def. SUMF ¶¶ 40-48 and Pl. Resp. to Def. SUMF ¶¶ 40-48 (discussing the

circumstances of Plaintiff’s interactions with his supervisor’s in January 2014, dealing with

issues as to whether Plaintiff was getting his work done on time.); Def. SUMF ¶¶ 26-28 and Pl.

Resp. to Def. SUMF ¶¶ 26-28 (discussing issues between Plaintiff and his supervisors in

November 2013 after an incident with his building access card).

that it was caused by [supervisor's] protected activity.”). Additionally, Plaintiff does not

offer evidence to oppose his alleged conduct that led to disciplinary actions. While

Plaintiff may disagree with the complaints of his supervisors, and the resulting business

decisions “without additional factual support from the record, Plaintiff cannot rebut

Defendant’s non-discriminatory reasons for termination.” See Jenkins v. Inspira Health

Network, Inc., No. CV 15-2922 (JBS/AMD), 2018 WL 1535208, at *14 (D.N.J. Mar. 29,

2018).

In support of his pretextual argument, Plaintiff again relies on comparator

evidence to demonstrate Defendant’s “disparate and antagonistic treatment” of him

compared to non-African American employees working for Defendant. Pl. Op. Brf. at 18.

For these reasons states supra in the Court’s discussion of Defendant’s racial

discrimination claim, the EMRE employees offered by Plaintiff as comparators do not

create an inference of retaliatory motive. The first issue, as the Court has already

addressed in-part is that Plaintiff cannot show such employees are similarly situated. To

be sure, Plaintiff was the first one to violate Defendant’s new safety rules and therefore,

there is not one particular employee whose misconduct could be compared to Plaintiff.

Because of this, however, the Union Grieved Plaintiff’s five-day suspension and

therefore, the length of Plaintiff’s suspension was decreased to three-days.

In addressing a causal connection, the Court may also consider “whether ‘the

proffered evidence, looked at as a whole, may suffice to raise the inference.’ ” Fasold v.

Justice, 409 F.3d 178, 190 (3d Cir. 2005). Here, the record as a whole lacks any

sufficient evidence. Even in a light most favorable to Plaintiff, there is no genuine issue

of material fact that but for Plaintiff’s protected activity Defendant would not have

suspended him.

C. Hostile Work Environment

Lastly, Defendant’s Motion for Summary Judgment argues that Plaintiff cannot

establish a prima facie case for hostile work environment. First, Defendant asserts that

Plaintiff’s harassment claim fails because there is no evidence that any of the alleged

harassment was based on his race. The Court agrees.

“When a black plaintiff alleges hostile work environment racial harassment

under the LAD, []he must demonstrate that the defendant’s ‘conduct (1) would not have

occurred but for the employee’s [race]; and [the conduct] was (2) severe or pervasive

enough to make a (3) reasonable [African American] believe that (4) the conditions of

employment are altered and the working environment is hostile or abusive.’” Caver v.

City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005) (citing Taylor v. Metzger, 706 A.2d

685, 688-89 (N.J. 1998) (quoting Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445, 453

(N.J.1993)) (modifications in original)). “‘[O]ffhanded comments, and isolated incidents

(unless extremely serious)’ are not sufficient to sustain a hostile work environment

claim.” Caver, 420 F.3d at 262 (quoting Faragher v. City of Boca Raton, 524 U.S. 775,

788 (1998)). “Rather, the ‘conduct must be extreme to amount to a change in the terms

and conditions of employment . . . .’” Id. In determining whether the conduct at issue is

sufficiently extreme, the Court must consider the “totality of the

circumstances.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990).

Claims under 42 U.S.C. § 1981 also are governed by the burden-shifting

principles set forth by the Supreme Court:

First, the plaintiff has the burden of proving by the preponderance of the

evidence a prima facie case of discrimination. Second, if the plaintiff

succeeds in proving the prima facie case, the burden shifts to the

defendant “to articulate some legitimate, nondiscriminatory reason for the

employee’s rejection.” Third, should the defendant carry this burden, the

plaintiff must then have an opportunity to prove by a preponderance of the

evidence that the legitimate reasons offered by the defendant were not its

true reasons, but were a pretext for discrimination.

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (citations omitted)

(quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Plaintiff’s complaint alleges that he was subject to a hostile work environment

through 2014. Plaintiff states that he has been denied access into the workplace;

removed from multiple committees; not scheduled as requested or given the same

scheduling accommodations as similarly situated coworkers; not given previously

assured training despite multiple requests; spoken to in a condescending and

inappropriate manner when he was addressed in the workplace; and Plaintiff further

alleges that his e-mail and correspondence regarding workplace matters were ignored.

In addition, Plaintiff reiterates that he was placed on a fitness for duty evaluation and

suspended upon his return form that evaluation.

The record, however, lacks any sufficient evidence that of the actions taken above

were because of Plaintiff’s race. Principally, the Court has already addressed in detail

Plaintiff’s suspension. To restate, it is undisputed that Plaintiff violated EMRE’s safety

rules, and as a serious violation Defendant decided to suspend Plaintiff. Similarly, most

of Plaintiff’s additional allegations of harassment are linked to disciplinary actions for

Plaintiff’s misconduct. Specifically, the record provides the following:

First, Plaintiff’s access card was temporarily deactivated while Plaintiff was on

paid leave for his fitness for duty evaluation. This evaluation was a precaution stemming

from Defendant’s concerns about Plaintiff’s mental state and the card was was

reactivated once he was cleared to return to work. Def. SUMF ¶ 77. Second, Defendant

offers that any issues with Plaintiff’s scheduling accommodations resulted from

Plaintiff’s late notice of request for such accommodations, contrary to work policy and

previous warnings. Id. at ¶¶ 97-99; Def. Ex. 59, 60. Certain training requested by

Plaintiff was not fulfilled because it was no longer required for Plaintiff’s role in GREF.

Plaintiff was informed that changes had been made and even asked to repot his previous

training to Defendant to ensure he would receive any proper further training. Def. Ex. 9.

Rather than ignoring Plaintiff’s correspondence pertaining to workplace matters, EMRE

initiated an investigation into Defendant’s complaints on three different occasions. Def.

SUMF ¶¶ 48-57; 94-105. Plaintiff himself was interviewed more than once in an effort to

resolve these workplace matters. In addition, Plaintiff’s supervisor states that not all

emails warrant a response, but Defendant nevertheless supplies multiple email-chains

and meetings between Plaintiff, his supervisors, HR, and Union representatives. See

e.g., Def. Exs. 8-9, 31-35. Finally, Plaintiff does not offer evidence to support his

conclusory allegation that he was spoken to in a “condescending” and “inappropriate”

manner, a specific allegation addressed in Defendant’s ongoing investigation into

Plaintiff’s internal complaints regarding discrimination and retaliation. Def. SUMF ¶¶

97, 99; Def. Ex. 3.

“Of course it is possible that an employer could express its discriminatory

animus by virtually any means. But unless those means themselves have a

discriminatory tinge, further facts are needed to establish the but-for causation

element.” DeSantis v. New Jersey Transit, 103 F. Supp. 3d 583, 594 (D.N.J. 2015)

(addressing the employee plaintiff’s “six enumerated acts of harassment” which were

“examples of workplace unfairness that d[id] not have any inherent connection to age,

race, or disability”).

To rebut Defendant’s Defendant evidence that its decisions regarding Plaintiff

were taken in light of his behavior and poor performance, and support his hostile work

environment claim, Plaintiff once more alleges that he was treated less favorably than

other non-African American employees. Thus, Plaintiff puts forth the same evidence this

Court finds fails to create an inference of discrimination. For the reasons stated above,

Plaintiff fails to establish that he was treated disparately compared to Caucasian

employees who did not make charges of discrimination. The Additional individuals

Plaintiff provides to illustrate the difference in treatment also fail to give rise to a

genuine dispute of fact as to whether Plaintiff’s alleged harassment was because of his

race.

First, Plaintiff maintains that Caucasian employee Jay berry, “who grabbed

another employee by the neck and pushed him into a cabinet,” was not sent for a fitness

of duty evaluation. Mr. Berry was, however, suspended for four weeks without pay. See

Def. Reply Ex. H. Additionally, instead of fitness of duty evaluation, which is to ensure

employees are “fit” for their job, Defendant’s also “required [Mr. Berry] to attend anger

management counseling” as a result of that event. Id.; Def. Rep. SUMF ¶ 83. Finally,

Plaintiff alleges that Greg Gray “made threatening statements” at the work place,” and

Lou DeCicco “engaged in verbal altercation,” but neither of these Caucasian employees

had to endure a fitness for duty evaluation. Pl. Br. at 33. Defendant has provided

documentation, however, that Mr. Grey was counseled and required to complete

harassment E-Leaning training. Mr. Grey was transferred from his group and received

additional one on one counseling. While Mr. DeCicco was not disciplined, Defendant

argues that his conduct was not similar to the Plaintiff’s. In fact, all three colleagues

engaged in different conduct than the Plaintiff. In the one scenario where a Caucasian

employee and Plaintiff did engage in the same poor performance, Defendant did

discipline them both in the same way.

Even viewing all of the facts in a light most favorable to Plaintiff no reasonable

jury could find that his supervisors conduct, and disciplinary actions would not have

occurred but-for his race. See Peace-Wickham v. Walls, 409 F. App'x 512, 520 (3d Cir.

2010) (finding Plaintiff failed to show a hostile work environment as a matter of law in-

part because employee “present[ed] no evidence to establish a discriminatory motive

behind her supervisor's experience-and performance-based reasons”). Therefore,

Defendant’s Motion for Summary Judgment is granted as to Plaintiff’s claims for Hostile

Work Environment.

IV. Conclusion

For the forgoing reasons, Defendant’s Motion for Summary Judgment is granted in

full. Accordingly, all counts of Plaintiff’s complaint will be dismissed.

An appropriate Order shall issue.

Dated: September 30, 2019

_ s/ Joseph H. Rodriguez______

Hon. Joseph H. Rodriguez,

UNITED STATES DISTRICT JUDGE