NWAOHIA v. WAL-MART STORES, INC.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

EMMANUEL NWAOHIA,

No. 1:18-cv-10648-NLH-AMD

Plaintiff,

v.

OPINION

WAL-MART STORES, INC., WAL-

MART STORES EAST, LP, and

JOHN DOES 1-5 AND 6-10,

Defendants.

APPEARANCES:

EMMANUEL NWAOHIA

1900 LAUREL ROAD

APT L-94

LINDENWOLD, NJ 08021

Plaintiff appearing pro se.

SALVADOR PEDRO SIMAO

DAVID S. KIM

FORD & HARRISON

300 Connell Drive

Suite 4100

Berkeley Heights, NJ 07922

On behalf of Defendants.

HILLMAN, District Judge

This matter concerns claims by Plaintiff Emmanuel Nwaohia,

appearing pro se, that Defendants Wal-Mart Stores, Inc., Wal-

Mart Stores East, LP, and John Does 1-5 and 6-10 discriminated

against him in violation of the New Jersey Law Against

Discrimination. Presently before the Court is Defendants’

motion for summary judgment on all claims. For the reasons

expressed below, Defendants’ motion will be granted, and

Plaintiff’s claims will be dismissed.

BACKGROUND

Plaintiff was first hired by Walmart to work in its

Turnersville, New Jersey store in 2004. (ECF No. 54-1 (“Def.

SOMF”) at ¶ 1). Over the next several years, Plaintiff was

repeatedly reprimanded, in the form of “coachings,” for various

acts of insubordination and disrespect towards his colleagues,

including throwing boxes and yelling at co-workers and

supervisors both in private and in public areas of the store.

Id. at ¶¶ 13-16. He was eventually fired from that position in

February 2008 for insubordination, shortly after which he was

re-hired for the same role in Defendants’ Deptford, New Jersey

store in August 2008. Id. at ¶¶ 2-3.

Throughout his time in both locations, Plaintiff was

employed as a Maintenance Associate. The job description for

his position makes clear that his “job duties and essential

functions included cleaning all areas of the facility utilizing

company tools, machinery, and approved chemicals, and to perform

routine maintenance on machines and other equipment.” Id. at ¶

27 (citing ECF No. 54-3, Ex. 14). And, importantly, it

specifies that Maintenance Associates are expected to be able to

engage in a number of physical activities, including but not

limited to moving, lifting, carrying, and placing merchandise

and supplies weighing up to 25 pounds without assistance, as

well as the ability to reach overhead and below the knees by

bending, twisting, pulling and stooping. Id. at ¶ 28.

However, on February 28, 2014, Plaintiff’s health care

provider advised Defendants that Plaintiff would be undergoing a

surgical procedure the following month and would be

incapacitated until June 2014, and that upon his return he would

not be able to lift more than 10 pounds, and should refrain from

activities such as bending, twisting and pulling. Id. at ¶ 29

(citing ECF No. 54-3, Ex. 15). Based on this, Plaintiff was

approved for the full 12 weeks of protected medical leave

assured to him by the Family and Medical Leave Act (“FMLA”).

When Plaintiff failed to return to work by the end of this

twelve weeks, Defendants then contacted him, and agreed to

provide him with additional paid leave under their own policy.

Id. at ¶¶ 31-32.

Eventually, on June 19, 2014, Plaintiff’s health care

provider informed Defendants that he would be able to return to

work, but further informed them that he may only “run the

Zamboni[] machine and sweep the floor.” Id. at ¶ 33. Based on

this note from his healthcare provider, Defendants then

permitted Plaintiff, despite the stated duties and requirements

of his job, to move forward performing only those two tasks;

Plaintiff himself conceded in his deposition that, from his

return to work in June 2014 until the date of his termination in

2017, those two tasks were the entirety of his responsibilities.

Id. at ¶¶ 34-36.

Plaintiff alleges that throughout his time in the Deptford

location, he was subjected to harassment on the basis of his

race and national origin, as a black man of African descent.

Although Plaintiff himself has put forward no evidence to

support these allegations, in the excerpts from his deposition

transcript submitted by Defendants he names a list of people who

engaged in some form of harassment, although he does not provide

further details on most of them. The only specific allegations

put forward are that two co-workers, a man named David and his

daughter Paula, called him a series of racially discriminatory

terms at some point between 2011 and 2017.

While Plaintiff attributes his issues at work and ultimate

termination from this second position to this racial and

national origin harassment and discrimination based on his

disability, throughout his time at the Deptford location,

Plaintiff was again repeatedly reprimanded and given “coachings”

for the same forms of disrespect and insubordination he was

terminated for in his first Walmart job. Id. at ¶¶ 20-25.

Finally, after having been reprimanded eight separate times and

specifically warned in September 2017 that “the next level of

action” for any future behavioral issues would be termination of

his employment, Plaintiff threw a greeting card at a supervisor

during an altercation on November 11, 2017, and was subsequently

terminated. Id. at ¶¶ 23-25.

Then on May 18, 2020, Plaintiff, represented by counsel,

filed his complaint in New Jersey state court. (ECF No. 1-1,

Ex. A). Defendants removed the action to this Court on June 15,

2018. (ECF No. 1). The parties then participated in an

arbitration program and engaged in discovery on Plaintiff’s

claims. Eventually, on July 12, 2019, Plaintiff’s counsel filed

a motion to withdraw as attorney, and filed an ex parte

certification explaining the reasons for the request (ECF No. 24

and 25); the Court granted the motion on July 24. (ECF No. 27).

Since that that point, Plaintiff has represented himself pro se.

Finally, on January 28, 2021, Defendants filed the

presently pending motion for summary judgment. After Plaintiff

failed to file an opposition brief, Judge Williams, the

magistrate judge assigned to the matter, held a status

conference after which she granted him additional time within

which to file an opposition. Rather than filing a proper brief,

Plaintiff filed a series of letters addressed both to the Court

and to opposing counsel on February 22, March 1, and March 4,

2021 — those letters largely repeated the conclusory allegations

found in Plaintiff’s complaint, and expressed frustration with

Defendants’ counsel’s apparent communications with Plaintiff

regarding the pending motion and previous settlement

discussions. (ECF No. 58, 59, and 60). Defendants, choosing to

treat those letters as Plaintiff’s opposition to the motion,

then timely filed a reply brief in further support of their

motion on March 18. (ECF No. 61). Plaintiff then filed yet

another letter on March 22, which mostly repeated statements

from his previous letters and expressed frustration that

Defendants’ counsel had served on him the reply brief and

supporting documents. (ECF No. 62). The time within which to

oppose or support the motion has since passed, and the motion is

therefore ripe for adjudication.

DISCUSSION

I. Subject Matter Jurisdiction

This Court has jurisdiction over Plaintiff’s federal claims

under 28 U.S.C. § 1332, as there is complete diversity of the

parties and the amount in controversy exceeds $75,000.

II. Standard for Motion for Summary Judgment

Summary judgment is appropriate where the Court is

satisfied that the materials in the record, including

depositions, documents, electronically stored information,

affidavits or declarations, stipulations, admissions, or

interrogatory answers, demonstrate that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).

An issue is “genuine” if it is 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 considering a motion for summary

judgment, a district court may not make credibility

determinations or engage in any weighing of the evidence;

instead, the non-moving party's evidence “is to be believed and

all justifiable inferences are to be drawn in his favor.”

Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.

2004)(quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating

the absence of a genuine issue of material fact. Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986). 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. 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 party opposing summary judgment must do more than just

rest upon mere allegations, general denials, or vague

statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.

2001).

III. Analysis

Plaintiff here has asserted five separate claims under the

NJLAD: his complaint includes claims for (1) disability

discrimination, (2) perception of disability discrimination, (3)

failure to accommodate, (4) racial harassment, and (5) national

origin harassment. Finally, he asserts a claim for equitable

relief, seeking a declaration from this Court that his rights

were violated and a number of orders directing Defendants to,

amongst other things, reinstate him as an employee.

The Court first notes that, as described above, the present

motion is largely unopposed. Rather than filing an opposition

brief and statement of disputed material facts under Local Civil

Rule 56.1, Plaintiff instead has filed a series of letters —

some addressed to the Court, some addressed to opposing counsel

— which reassert in general terms his claims, complain about his

lack of legal counsel and communications with Defendants’

counsel, and attach older letters he had sent to Defendants’

counsel and some of the previous filings in this case. The

letters make no attempt to address any of the legal arguments

put forth in Defendants’ moving brief, nor to put forward

evidence in support of his claims. However, a plaintiff's

“failure to respond ‘is not alone a sufficient basis for the

entry of a summary judgment.’” Kirkland–Rodriguez v. Cooper

University Health Care, No. 1:16–cv–3999 (NLH/KMW), 2017 WL

5889234, at *3 (D.N.J. Nov. 29, 2017) (quoting Muskett v.

Certegy Check Servs., Inc., No. 08–3975, 2010 WL 2710555, at *3

(D.N.J. July 6, 2010). “The Court must still determine, even

for an unopposed summary judgment motion, whether the motion for

summary judgment has been properly made and supported and

whether granting summary judgment is ‘appropriate,’ as required”

by the Federal Rules of Civil Procedure. Id.

Accordingly, the Court will address the merits of this

summary judgment motion despite the lack of a proper response to

the motion from Plaintiff. However, a movant who files a proper

Local Civil Rule 56.1 statement of undisputed material facts

which is unopposed by the opposing party receives the benefit of

the assumption that such facts are admitted for purposes of the

summary judgment motion. See L. Civ. R. 56.1 (providing that

“any material fact not disputed shall be deemed undisputed for

the purposes of the summary judgment motion”). To the extent

that Defendants’ Rule 56.1 statements of fact are undisputed at

this stage, the Court will therefore treat them as admitted for

the purpose of adjudicating the present motion.

A. Disability Discrimination Claims

Plaintiff’s Complaint asserts two disability-related claims

under the NJLAD: one for disability discrimination, and another

for perception of disability discrimination. While Counts I and

II do not specify exactly which of Defendants’ actions he

believes constituted discrimination, the Complaint alleges both

that Defendant was “written up four times for refusing to do

tasks that he was medically unable to do” and that he was

eventually terminated due, at least in part, to his disability.

(ECF No. 1-1 at ¶¶ 14-15, 28-29).

The NJLAD forbids “any unlawful discrimination against any

person because such person is or has been at any time disabled

or any unlawful employment practice against such person, unless

the nature and extent of the disability reasonably precludes the

performance of the particular employment.” N.J. Stat. Ann. §

10:5-4.1. Plaintiff’s two disability-related claims are

properly considered together, as a “perception of disability

discrimination” claim “merely provides an alternative definition

for a motivation prohibited by the statute; it does not present

a separate cause of action.” Cotto v. Ardagh Glass Packing,

Inc., 2018 WL 3814278, at *4 (D.N.J. Aug. 10, 2018) (citing

Rogers v. Campbell Foundry Co., 185 N.J. Super. 109, 112 (App.

Div. 1982); see also Poff v. Caro, 549 A.2d 900, 903 (N.J.

Super. Ct. Law Div. 1987) (“discrimination based on a perception

of a handicap is within the protection of the Law Against

Discrimination.”).

NJLAD claims are analyzed under the familiar burden-

shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). Viscik v. Fowler Equip. Co., 800 A.2d 826, 833

(N.J. 2002). Under that framework, “a plaintiff must first

establish a prima facie case of discrimination. If the

plaintiff succeeds, the defendant must articulate a legitimate,

nondiscriminatory reason for the adverse employment action. The

burden then shifts back to the plaintiff to prove, by a

preponderance of the evidence, that the articulated reason was a

mere pretext for discrimination.” Capps v. Mondelez Global,

LLC, 847 F.3d 144, 152 (3d Cir. 2017) (quoting Ross v. Gilhuly,

755 F.3d 185, 193 (3d Cir. 2014)).

The Court therefore begins by assessing whether Plaintiff

has established a prima facie case of disability discrimination.

“The specific elements of a prima facie case of disability

discrimination vary to some extent, like all employment

discrimination claims, depending on the specific cause of

action.” Tourtellote v. Eli Lilly Co., 636 F. App’x. 831, 848

(citing Victor v. State, 203 N.J. 383, 4 A.3d 126, 140-41

(2010)). Defendants, for their part, appear to focus largely on

Plaintiff’s claim that he was terminated due to his disability.

To establish a prima facie case of disability discrimination for

discriminatory discharge under the NJLAD, “a plaintiff must

demonstrate that: (1) [he] is the member of a protected class,

specifically that [he] has or is perceived to have a disability

as defined by the NJLAD; (2) [he] was otherwise qualified to

perform the essential functions of the job, with or without

reasonable accommodation by the employer; (3) [he] experienced

an adverse employment action; and (4) the employer sought

someone else to perform the same work, or did fill the position

with a similarly-qualified person.” Id. at 848 (citing Victor,

203 N.J. 383, 4 A.3d at 141-42).

However, Plaintiff also clearly alleges that he was

disciplined multiple times for failure to perform tasks his

disability precluded him from performing; assuming he meant this

as a separate disability discrimination claim, the prima facie

elements for such a claim are highly similar, with only slight

differences: “[t]o state a prima facie cause of action for

disability discrimination, Plaintiff must show he: (1) was

disabled; (2) is otherwise qualified to perform the essential

functions of the job, with or without reasonable accommodations

by the employer; and (3) suffered an otherwise adverse

employment decision as a result of discrimination.” Marsh v.

GGB, LLC, 455 F. Supp. 3d 113, 124 (D.N.J. 2020) (Hillman, J.)

(citing Stewart v. Cty. of Salem, 274 F. Supp. 3d 254, 259

(D.N.J. 2017)).

Defendants here do not dispute that Plaintiff had a

disability within the NJLAD’s definition of the term, nor that

he was terminated from his position, the most straightforward

example of an adverse employment action. However, they

accurately note that there is “no record evidence proffered by

Plaintiff contending that individuals outside of his protected

class were treated more favorably or were sought to perform his

duties upon his termination.” (ECF No. 54-2 at 8). As stated

above, Plaintiff has largely chosen not to respond to or

properly oppose the present motion for summary judgment —

instead he has filed only a series of letters, none of which

provide any factual support for any of his allegations.

“Though the Court will read the facts in the light most

favorable to Plaintiff, the Court is not required to read facts

that simply do not exist. Nor is the Court permitted to move

forward a disability discrimination cause of action under the

NJLAD if a plaintiff cannot first establish each of the prima

facie elements.” Guarneri v. Buckeye Pipe Line Services Co.,

205 F. Supp. 3d 606, 615 (D.N.J. 2016). Even were this Court to

interpret Plaintiff’s letters as opposition briefs or the claims

asserted in his filings as attempts to oppose Defendants’

statement of material facts under Rule 56.1, it must be noted

that none of the letters filed by Plaintiff after the present

motion was filed address his disability claims in any detail

whatsoever. In other words, Plaintiff has provided the Court

with absolutely no opposing evidentiary support for his

disability discrimination claims. To the extent his disability

discrimination claims are based on his termination, he has

provided the Court no basis from which to conclude that he was

treated less favorably than other individuals outside of his

protected class or that Walmart sought such individuals to

perform his duties after his termination.

And to the extent that the disability discrimination counts

in the Complaint were based on Plaintiff’s claim that he was

“written up four times for refusing to do tasks that he was

medically unable to do,” (ECF No. 1-1 ¶ 15), Plaintiff has again

failed to put forward sufficient evidence to raise a genuine

dispute of fact regarding his prima facie case. Plaintiff

himself, of course, has introduced no evidence at all at this

stage; the only evidence in the record that would support this

claim is Plaintiff’s statement in his deposition, filed by

Defendants, that he was reprimanded in the form of verbal

“coachings” — however, Plaintiff openly concedes that he has no

documentation to support this allegation or any proof that he

was ever “written up” as alleged in his complaint, and that he

can provide no details regarding when these “coachings”

happened, or any other context at all besides the names of the

individuals he claims gave them. (See ECF No. 54-2, Ex. 2 at

49:5-51:24). Defendants’, on the other hand, have introduced

into the record unopposed statements of fact and supporting

evidence for their contention that Plaintiff was in fact never

punished or written up by a Walmart employee for failure to

perform any task. (Def. SOMF at ¶¶ 38-39). Simply put, the

Court finds Plaintiff’s conclusory, vague allegations entirely

insufficient to raise a genuine dispute of fact on this point,

and accordingly finds that Plaintiff has failed to establish a

prima facie case of disability discrimination on either front.

The Court briefly notes that, even if Plaintiff had

demonstrated a prima facie case, Defendants’ motion would still

have been granted. As outlined above, the second stage in the

McDonnell-Douglas framework involves the burden shifting to

Defendants to demonstrate a neutral, nondiscriminatory basis for

their actions, which Plaintiff must then counter with sufficient

evidence to demonstrate that the proffered nondiscriminatory

explanation was merely pretext. Defendants here have met their

burden to put forward evidence to support their claim that

Plaintiff was in fact repeatedly reprimanded and eventually

terminated for repeated instances of disrespect towards co-

workers and supervisors, insubordination, and related behavior

that was entirely unrelated to his disability, and that he was

in fact directly warned that failure to change his behavior

would result in termination. (See Def. SOMF at ¶¶ 12-16, 20-24)

(outlining Plaintiff’s history of punishment while a Walmart

employee for “lack of Respect for the Individual in the

workplace and insubordination, due to various instances of

disrespectful behavior towards co-workers and supervisors”).

And Defendants’ argument that this was the real basis for his

termination in 2017 is strongly supported by the fact that, even

though Plaintiff did not suffer the injury that led to his

disability until his second stint as a Walmart employee and

Plaintiff only alleges in his Complaint that the harassment

started at that same second job, he had already been fired from

a separate Walmart store for essentially the same behavior in

2008. Id. at ¶¶ 2-3.

Once again, Plaintiff has entirely failed to put forward

opposing evidence of his own, and therefore Defendants’ properly

supported statement of facts on this front must be considered

admitted as the truth. Accordingly, even had Plaintiff

demonstrated a prima facie case, Defendants have offered a

nondiscriminatory explanation for their actions that Plaintiff

has entirely failed to rebut as merely pretext. For these

reasons, Defendants’ motion for summary judgment on Counts I and

II of the Complaint must be granted.

B. Failure to Accommodate Claim

Plaintiff next asserts a claim that Defendants failed to

reasonably accommodate his disability, also in violation of the

NJLAD. Under the NJLAD, an employer must “make a reasonable

accommodation to the limitations of an employee or applicant who

is a person with a disability, unless the employer can

demonstrate that the accommodation would impose an undue

hardship.” N.J. Admin. Code. Tit. 13, § 13-2.5; see also

Fitzgerald v. Shore Memorial Hosp., 92 F. Supp. 3d 214, 237

(D.N.J. 2015).

Again, Plaintiff’s NJLAD claims are analyzed under the

McDonnell-Douglas burden-shifting framework, under which he must

first demonstrate the existence of a prima facie case. To state

a prima facie case for failure to accommodate in violation of

the NJLAD, Plaintiff must plead that (1) the employer knew about

the employee's disability; (2) the employee requested

accommodations or assistance for her disability; (3) the

employer did not make a good faith effort to assist; and (4) the

employee could have been reasonably accommodated. Armstrong v.

Burdette Tomlin Mem'l Hosp., 438 F.3d 240, 246 (3d Cir. 2006).

Here, Plaintiff’s Complaint specifically alleges that he

“made a request for a reasonable accommodation, that he be

allowed to have certain lifting restrictions,” and that

“Defendants failed to reasonably accommodate plaintiff and

failed to engage in any interactive process with plaintiff to

determine whether a reasonable accommodation was possible.”

(ECF No. 1-1 at ¶¶ 30-31). Defendants, for their part, argue

that they did in fact grant Plaintiff his requested

accommodation for over three and a half years before his

eventual termination.

The Court agrees. The undisputed evidence in the record

here unequivocally supports Defendants’ claim that “Walmart went

above and beyond in making good faith efforts to assist

Plaintiff with his continued employment with the Company.” (ECF

No. 54-2 at 4). In his time as a Walmart employee, Plaintiff

worked as a “Maintenance Assistant.” (Def. SOMF at ¶ 26). In

that position, his duties and essential functions included

“cleaning all areas of the facility utilizing company tools,

machinery, and approved chemicals, and to perform routine

maintenance on machines and other equipment,” and he was

expected to perform certain physical activities, “including but

not limited to, moving, lifting, carrying, and placing

merchandise and supplies weighing up to 25 pounds without

assistance, as well as the ability to reach overhead and below

the knees by bending, twisting, pulling and stooping.” Id. at

¶¶ 27-28.

In February 2014, Plaintiff’s physician informed Defendants

that he would be undergoing a surgical procedure in March and

would be out of work until June 6. Id. at ¶ 29. Defendants

granted Plaintiff’s request for the full 12 weeks of paid leave

afforded to him by the Family Medical Leave Act (“FMLA”). When

Plaintiff did not return to work at the end of those 12

protected weeks, Walmart than granted Plaintiff additional leave

under its own policies, and eventually allowed Plaintiff to

return to his same position. Id. at ¶¶ 31-32. When he

returned, Plaintiff’s health care provider faxed Defendants a

note stating that Plaintiff “may run the Zamboni[] machine and

sweep the floor,” id. at ¶ 33, which combined with his doctor’s

earlier note informing Defendants that Plaintiff would “would

not be able to lift more than 10 pounds, and should refrain from

activities such as bending, twisting and pulling upon his return

to work,” id. at ¶ 29, served as a clear request for

accommodation due to his physical disability.

While Plaintiff’s Complaint alleges that Defendant failed

to reasonably accommodate him or to engage in an interactive

process to determine what accommodations may be needed, the

evidence in the record, and Plaintiff’s own testimony,

demonstrate the exact opposite to be true. Rather than ignore

his request for accommodation or deny it, Defendants proceeded

to allow Plaintiff to limit his job duties to running the

Zamboni machine and sweeping the floor, despite the more

expansive expectations described above for a Maintenance

Assistant. This fact is not in dispute at this stage: in his

deposition, Plaintiff himself explicitly and repeatedly admitted

that after he returned from his surgery, his only duties on the

job were to “[s]weep the floor, and drive [the] Zamboni.” (ECF

No. 54-4, Ex. 2 at 28:1-29:3). In other words, Plaintiff, after

being permitted to take leave beyond that offered by the FMLA

before returning to his same position, produced to his employer

a doctor’s note stating that due to his surgery he would only be

able to perform two of his general job duties moving forward,

and Defendant permitted him to keep his job and perform only

those two duties for the next three and a half years of his

employment.

Plaintiff has put forward no evidence whatsoever to

demonstrate that he was not given a reasonable accommodation —

he was in fact granted the exact accommodation he requested, a

point he openly admitted. Given that fact, the Court easily

finds that Defendant has met its burden of showing that there is

no genuine dispute of material fact as to Plaintiff’s failure to

accommodate claim, and will grant the motion for summary

judgment as to that claim.

C. Racial and National Origin Harassment Claims

Finally, Plaintiff has also asserted counts of both “racial

harassment” and “national origin harassment,” which this Court

interprets as claims for a hostile work environment in violation

of the NJLAD. As for the rest of his claims, Plaintiff’s

hostile work environment claims are analyzed under the

McDonnell-Douglas framework. To initially establish a prima

facie case of harassment on the basis of race or national

origin, he must demonstrate that the defendant's conduct (1)

would not have occurred but for his race or national origin; and

the conduct was (2) severe or pervasive enough to make a (3)

reasonable person of the same protected class believe that (4)

the conditions of employment are altered and the working

environment is hostile or abusive. Cardenas v. Massey, 269 F.3d

251, 263 (3d Cir. 2001) (citing Taylor v. Metzger, 152 N.J. 490,

498, 706 A.2d 685, 688–89 (1998)).

“‘[O]ffhanded comments, and isolated incidents (unless

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

environment claim.” Caver v. City of Trenton, 420 F.3d 243, 262

(3d Cir. 2005) (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 if a work environment is hostile or

abusive, courts look to totality of the circumstances, which

should include “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.” Mandel v. M &

Q Packaging Corp., 706 F.3d 157, 168 (3d Cir. 2013) (quoting

Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367,

126 L.Ed.2d 295 (1993))

Plaintiff here alleges that he was repeatedly subjected to

racial slurs by his coworkers and supervisors at Walmart.

Specifically, in his complaint, letters filed on the Court’s

docket, and in his deposition testimony entered into the record

by Defendants, Plaintiff claims that he was referred to by three

terms: “African nigger,” “Blackie,” and “Thief.” (See ECF No.

54-2, Ex. 2 at 20:5-16). The highly offensive and racially

discriminatory language allegedly directed at Plaintiff here

goes well beyond discourtesy and rudeness, and the Court

recognizes that under certain circumstances, a single utterance

of a racial epithet can be deemed sufficiently severe and

pervasive to create a hostile work environment. Beaman-Bates v.

Acme Markets, Inc., No. 17-5581, 2020 WL 3287128, at *6 (D.N.J.

June 18, 2020).

However, Plaintiff, under the totality of the circumstances

test, has failed to put forward sufficient facts to raise a

genuine dispute of material fact as to whether these alleged

statements created a hostile work environment. First, the Court

notes that there is simply no evidence in the record regarding

how many times Plaintiff was allegedly referred to by these

discriminatory terms, nor the circumstances under which these

discriminatory comments were made. As Defendants note, in his

deposition Plaintiff did “not provide specific dates or context

for these derogatory comments,” instead alleging only that they

occurred over a six-year period and were made by multiple

employees. (Def. SOMF at ¶ 41) (citing ECF No. 54-2, Ex. 2 at

20:10-15; 112:5-20). Plaintiff does not make clear which

remarks were made how many times; nor is it clear exactly which

of Defendants’ employees are supposed to have made which

remarks. The only specific, clear allegations put forward by

Plaintiff in the evidence currently in the record are that two

co-workers of his, “David and his daughter, Paula” called him

all three of the terms listed above. (ECF No. 54-2, Ex. 2 at

20:2-19). However, in the excerpts from his deposition

testimony currently before the Court, Plaintiff fails to state

how many times David and Paula called him these names, and fails

to provide any other context whatsoever to these specific

incidents. While Plaintiff does appear to name a few other

individuals who allegedly harassed him, there is no evidence

currently in the record that provides any other information or

context, and Plaintiff’s excerpted deposition testimony does not

specifically accuse any of these other individual employees of

any specific acts beyond conclusory allegations of “harassment.”

(See id. at 12:1-5).

Instead, even when viewed in the light most favorable to

Plaintiff, the Court is only presented with conclusory

allegations that two co-workers called him several offensive

terms at some point in time between 2011 and 2017. As

Defendants note, under New Jersey law the analysis of whether

specific examples of racial or national origin discrimination

are severe or pervasive enough to create a hostile work

environment is inherently fact-specific and fact intensive,

requiring courts to take a detailed look at the specific

evidence before them and compare it to other previous cases

under the NJLAD or Title VII. Plaintiff here makes such an

analysis impossible. Were the Court to accept the specific

factual allegations made by Plaintiff in his deposition

testimony as the truth, it would have nothing more before it but

the fact that two co-workers called Plaintiff a racial slur and

other offensive names an unknown number of times, in an unknown

context, on some unknown dates, and that some other employees

“harassed” him in some unknown way.

Similarly, while the severity or pervasiveness of alleged

harassment can be sufficient for a juror to conclude that a

reasonable person would have found the terms of their employment

altered without further supporting evidence, the Court notes

that Plaintiff has also entirely failed to put forward any

evidence that these incidents impacted his work performance or

ability to do his job. Defendants’ evidence demonstrates that,

from 2010 up until Plaintiff’s termination in 2017 — a period of

years which encompasses the entire timeframe in which the

Complaint alleges the racially discriminatory comments occurred

— Plaintiff received the exact same performance rating each

year. (Def. SOMF at ¶ 44) (citing ECF No. 54-5, Ex. 20). While

the Court recognizes that Defendants’ own rating system may not

be the perfect means by which to measure the impact of racial

harassment on an employee’s ability to do his job, Plaintiff

here has not put forward any contradictory evidence to dispute

Defendants’ evidence and analysis.

Importantly, even were the Court to concede that Plaintiff

has sufficiently established a prima facie case, he nonetheless

has failed to sufficiently establish that Defendants should be

held liable for the statements made by their employees. “In New

Jersey, an employer is liable for a co-worker's harassing

conduct only if ‘management-level employees knew, or in the

exercise of reasonable care should have known, about the

campaign of harassment.’” Nuness v. Simon and Schuster, Inc.,

221 F.Supp.3d 596, 604 (D.N.J. 2016) (quoting Herman v. Coastal

Corp., 791 A.2d 238, 252 (N.J. Super. Ct. App. Div. 2002)).

“Furthermore, the plaintiff must show that the employer failed

to provide a reasonable avenue for complaint or was aware of the

alleged harassment and failed to take appropriate remedial

action.” Id. at 605 (citing Weston v. Pennsylvania, 251 F.3d

420, 426–27 (3d Cir. 2001)).

Plaintiff’s Complaint does directly allege that multiple

supervisors referred to him by racial slurs. (ECF No. 1-1 at ¶¶

17). However, factual allegations found only in a complaint are

entirely insufficient to defeat summary judgment; the only

actual evidence currently before the Court that could plausibly

support Plaintiff’s claims, the excerpts from his deposition

transcripts filed by Defendants, only shows Plaintiff claiming

that he was subjected to racially discriminatory remarks by two

co-workers, rather than including any allegations that his

supervisors called him any specific terms. New Jersey and

federal law is clear that “employer liability for co-worker

harassment exists only if the employer failed to provide a

reasonable avenue for complaint or, alternatively, if the

employer knew or should have known of the harassment and failed

to take prompt and appropriate remedial action.” Beaman-Bates,

2020 WL 3287128, at *6. Here, the supportive evidence for

Plaintiff is deposition testimony which only specifically names

two co-workers, and which puts forward no evidence that he

formally reported these issues. In fact, his deposition

testimony appears to imply that he did not file any formal

complaints despite Defendants’ clearly stated policies and

avenues for filing such a complaint. (See Def. SOMF at ¶ 42)

(citing ECF No. 54-2, Ex. 2 at 75:17-76:22; 110:1-6).

While it seems entirely possible that Plaintiff may have

been able to avoid summary judgment on this claim, Plaintiff’s

failure to truly oppose the present motion, or to put forward

any evidence at all in support of his allegations, is once again

fatal for his complaint. Defendants have provided this Court

with a statement of facts and supporting evidence asserting that

Plaintiff’s work performance did not suffer and that he did not

appear to file any formal complaint regarding racial harassment,

and Plaintiff has put forward nothing more than conclusory

allegations that two co-workers referred to him by racially

discriminatory terms an unknown number of times under unknown

circumstances. As repeatedly stated above, with no true

opposition filed by Plaintiff here, Defendants’ supported

statement of facts must be viewed as admitted for the purposes

of the present motion for summary judgment. With that being the

case, Plaintiff has again failed to establish a prima facie case

for hostile work environment under the NJLAD, and Defendants’

motion for summary judgment must be granted as to Counts IV and

V of the Complaint.1

CONCLUSION

For the reasons expressed above, Defendants’ motion for

summary judgment (ECF No. 54) will be granted.

An appropriate Order will be entered.

Date: July 7, 2021 /s Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

1 As the Court has found that Defendants’ motion for summary

judgment must be granted as to each of Plaintiff’s NJLAD claims,

Plaintiff’s final claim for equitable relief, which is entirely

dependent on those claims, must also be dismissed.