Podurgiel v. Acme Markets Inc.

MOTION for Summary Judgment Defendant's Brief in Support of Motion for Summary Judgment on Complaint

D.N.J.February 15, 2018

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY GREGORY PODURGIEL, Plaintiff, v. ACME MARKETS, INC. Defendants. : : : : : : : : Civil Action No. 16-cv-02262 (PGS/TJB) DEFENDANT’S BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT ON THE COMPLAINT COZEN O’CONNOR, P.C. A Pennsylvania Professional Corporation By: Raymond A. Kresge, Esq. (NJ ID 009031996) Elizabeth A. Malloy, Esq. (pro hac vice) Jason A. Cabrera, Esq. (NJ ID 077342013) One Liberty Place 1650 Market Street, Suite 2800 Philadelphia, PA 19103 Phone: (215)-665-2000 Fax: (215)-665-2013 Attorneys for Defendant Acme Markets, Inc. Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 1 of 31 PageID: 311 i TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 1 II. RELEVANT PROCEDURAL HISTORY ......................................................................... 2 III. GENERAL LEGAL STANDARDS ................................................................................... 2 A. Summary Judgment ................................................................................................ 2 B. McDonnell Douglas Framework............................................................................. 3 IV. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON EACH COUNT OF THE COMPLAINT. ........................................................................................................... 3 A. Acme Is Entitled To Summary Judgment On Count I Because Acme Is Not A Successor Of A&P Under The FMLA. ................................................................... 4 1. Acme Was Not Subject To The FMLA’s Requirements For Podurgiel. .... 4 a) The Bankruptcy Code Provides That Acme Was Not A Successor To A&P For Any Purpose, Including FMLA Liability. ................. 4 b) FMLA’s Own Regulation Shows That Acme Was Not A Successor......................................................................................... 7 2. Acme Did Not Interfere With Podurgiel’s Leave Through An Orientation Meeting Or By Failing To Restore Him To His Prior Position. ............... 13 B. Acme Is Entitled To Summary Judgment On Counts II & IV Because Podurgiel Cannot Show A Prima Facie Case Of Retaliation Or Establish Pretext. ............. 15 1. Podurgiel Does Not Show A Prima Facie Case Of Retaliation. ............... 16 2. Podurgiel Has No Evidence Of Pretext. ................................................... 20 C. Acme Is Entitled To Summary Judgment On Counts III & V Because Podurgiel Cannot Show A Prima Facie Case Of Disability Discrimination Or Establish Pretext. .................................................................................................................. 23 1. Podurgiel Does Not Show A Prima Facie Case Of Discrimination.......... 23 2. Podurgiel Has No Evidence Of Pretext. ................................................... 25 V. CONCLUSION ................................................................................................................. 27 Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 2 of 31 PageID: 312 ii TABLE OF AUTHORITIES Page(s) Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ...................................................................................................................2 Capilli v. Whitesell Const. Co., 271 F. App’x 261 (3d Cir. 2008) .............................................................................................20 Capps v. Mondelez Global LLC, 847 F.3d 144 (3d Cir. 2017)...........................................................................................4, 16, 20 In re Christ Hospital, 2014 WL 2135942 (D.N.J. Bankr. May 22, 2014) ..............................................................5, 13 Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135 (3d Cir. 2004).......................................................................................................2 Davis v. City of Newark, 417 F. App'x 201 (3d Cir. 2011) ..............................................................................................16 Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994).......................................................................................................26 Gaines v. United Parcel Serv., Inc., 2014 WL 1450113 (D.N.J. Apr. 14, 2014) ..............................................................................16 Garvin v. Progressive Cas. Ins. Co., 2010 WL 1948593 (E.D. Pa. May 10, 2010) ...........................................................................26 In re The Great Atlantic & Pacific Tea Co., Inc., Case No. 15-23007 (S.D.N.Y. Bankr. Jan. 22, 2016) ................................................................4 Guarneri v. Buckeye Pipe Line Services Co., 205 F. Supp. 3d 606, 614 (D.N.J. 2016) ..................................................................................24 Joseph v. N.J. Transit Rail Ops., Inc., 2013 WL 5676690 (D.N.J. Oct. 17, 2013).................................................................................2 Lassalle v. Port Auth. of N.Y. & N.J., 2013 WL 6094339 (D.N.J. Nov. 19, 2013) .............................................................................15 Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294 ......................................................................................................................16, 18 Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 3 of 31 PageID: 313 iii McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .......................................................................................................3, 16, 24 Miller v. Level 3 Communications, 2005 WL 1529419 (D.N.J. June 29, 2005) ..............................................................................13 O’Donnell v. Passport Health Communications, Inc., 561 F. App’x 212 (3d Cir. 2014) .......................................................................................14, 15 Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770 (9th Cir. 2010) ........................................................................................... passim Thomas v. Town of Hammonton, 351 F.3d 108 (3d Cir. 2003).....................................................................................................18 Tourtellotte v. Eli Lily Co., 636 F. App’x 831 (3d Cir. 2016) ...............................................................................................3 In re Trans World Airlines, 322 F.3d 283 (3d Cir. 2003).......................................................................................................5 Vanderhoof v. Life Extension Inst., 988 F. Supp. 507 (D.N.J. 1997) ...............................................................................................13 Victor v. State, 203 N.J. 383 (2010) ...........................................................................................................16, 24 Viscik v. Fowler Equipment Co., 173 N.J. 1 (2002) .....................................................................................................................24 Zive v. Stanley Robert, Inc., 182 N.J. 436 (2005) .............................................................................................................3, 20 Statutes 11 U.S.C. § 363(f) ......................................................................................................................5, 13 29 U.S.C. 2601 et seq.......................................................................................................................5 Other Authorities 29 C.F.R. 825.107 ..................................................................................................................5, 7, 13 Federal Rule of Civil Procedure 56 .................................................................................................2 Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 4 of 31 PageID: 314 Defendant Acme Markets, Inc. (“Acme” or “Defendant”), through its undersigned counsel, files this brief in support of its motion for summary judgment. I. INTRODUCTION Plaintiff Gregory Podurgiel took a leave of absence from his position as a butcher at the A&P Supermarket in Wall Township on September 8, 2015; by the time he was released to return to work on November 16, 2015, Acme had acquired the Wall Township store through A&P’s bankruptcy proceedings. Two days after Podurgiel was released to work, he was placed on “active” employee status in the Acme human resources system. Unfortunately, though, Podurgiel apparently was not informed about his placement on “active” roster for another six weeks until December 28, 2015. Podurgiel has stipulated that he is not seeking back pay damages after that date. Podurgiel filed a Complaint in this Court alleging FMLA interference, FMLA retaliation, disability discrimination, and retaliation, all against Acme. None of his charges have merit. As a threshold matter, Acme wasn't obligated to provide Podurgiel with FMLA benefits (including job restoration) because Acme was not and is not a successor employer to A&P and owed no FMLA obligations to Podurgiel. On the merits, Podurgiel cannot establish a prima facie case for his discrimination or retaliation counts and he cannot cast any doubt on Acme’s legitimate, non- discriminatory reasons for its actions. And there is no dispute that Acme corrected whatever errors may have occurred when Acme restored Podurgiel’s status to the active employee roster two days after he was released to return to work and informed him a few weeks later that he should contact the store to get placed back on the schedule. Podurgiel’s decision not to seek back wages after December 28, 2015 is stipulated, and telling. Acme is entitled to summary judgment on all counts of Podurgiel’s complaint. Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 5 of 31 PageID: 315 2 II. RELEVANT PROCEDURAL HISTORY Podurgiel filed his Complaint in this Court on April 21, 2016. (ECF No. 1.) Acme filed its answer on June 24, 2016. (ECF No. 4.) The parties then engaged in discovery and had an unsuccessful settlement conference before Judge Bongiovanni in November 2017. Discovery was closed on January 15, 2018, and opening briefs for any party seeking summary judgment on any issue are due on February 15, 2018. (ECF No. 44.) III. GENERAL LEGAL STANDARDS A. Summary Judgment Under Federal Rule of Civil Procedure 56, a party is entitled to summary judgment if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” An issue is genuine if it is supported by evidence such that a reasonable jury could return a verdict in favor of the non-movant, and a fact is material if a dispute about the fact might affect the outcome of the claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 249. “With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case.’” Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145–46 (3d Cir. 2004) (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548). The non-moving party then bears the burden of presenting evidence that a genuine issue of material fact compels a trial. Celotex, 477 U.S. at 324. “The non-moving party must offer specific facts that establish a genuine issue of material fact; the non-moving party may not simply rely on unsupported assumptions, bare allegations, or speculation.” Joseph v. N.J. Transit Rail Ops., Inc., 2013 WL 5676690 (D.N.J. Oct. 17, 2013) (citations omitted). Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 6 of 31 PageID: 316 3 B. McDonnell Douglas Framework Discrimination and retaliation cases brought under the New Jersey Law Against Discrimination (“NJLAD” or “LAD”) and that rely on circumstantial evidence (as opposed to direct evidence)1 are controlled by the well-known, three-step burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). E.g., Zive v. Stanley Robert, Inc., 182 N.J. 436, 447 (2005). Given that this framework is applicable to most of the claims in this matter, the general standards will be set forth here. In Tourtellotte v. Eli Lily Co., 636 F. App’x 831 (3d Cir. 2016), the Third Circuit described the framework as follows. The McDonnell Douglas framework requires that the plaintiff first establish a prima facie case of discrimination or retaliation. If the plaintiff successfully meets the requirements of a prima facie case, the burden then shifts to the employer to articulate a legitimate, nonretaliatory or nondiscriminatory reason for its actions. If the employer produces such a reason, the burden then shifts back to the plaintiff to prove that the employer's nonretaliatory or nondiscriminatory explanation is merely a pretext for the discrimination or retaliation. In the context of a challenge to a grant of summary judgment, at the pretext stage of McDonnell Douglas the appellant must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. To accomplish this, the appellant must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted nondiscriminatory reasons. Id. at 842 (multiple internal citations, quotation marks, alterations omitted). IV. DEFENDANT IS ENTITLED TO SUMMARY JUDGMENT ON EACH COUNT OF THE COMPLAINT. For the reasons expressed below, Acme is entitled to summary judgment on each count of Podurgiel’s complaint. 1 There is no direct evidence of discrimination at issue in this proceeding. Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 7 of 31 PageID: 317 4 A. Acme Is Entitled To Summary Judgment On Count I Because Acme Is Not A Successor Of A&P Under The FMLA. Podurgiel claims that Acme interfered with his FMLA leave by asking him to attend an orientation session while on leave, by failing to place him on its active payroll when his need for leave ended, and by terminating him or not continuing his employment. Complaint at ¶ 49-50. This claim fails for many reasons, including one major reason: Acme was not a successor to A&P under the FMLA and, accordingly, had no obligations to Podurgiel under that statute. To make a claim for interference under the FMLA, a plaintiff must establish that (1) he or she was an eligible employee under the FMLA; (2) the defendant was an employer subject to the FMLA's requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice to the defendant of his or her intention to take FMLA leave; and (5) the plaintiff was denied benefits to which he or she was entitled under the FMLA. Capps, 847 F.3d at 155 (citation omitted). McDonnell-Douglas has no application here; a plaintiff must instead show that he was denied his or her entitlements under the act. Id. Podurgiel cannot show that Acme was subject to the FMLA’s requirements or that he was denied benefits to which he was entitled under the FMLA. Acme’s acquisition of A&P was made “free and clear of all Claims (including, without limitation, any…successor liability claims)” and the bankruptcy court approving the sale held that Acme “is not and shall not be considered a successor to [A&P].” In re The Great Atlantic & Pacific Tea Co., Inc., Case No. 15-23007 (S.D.N.Y. Bankr. Jan. 22, 2016) (ECF No. 2366) at 11 & 6. Accordingly, Podurgiel’s claims in Count I must fail. 1. Acme Was Not Subject To The FMLA’s Requirements For Podurgiel. a) The Bankruptcy Code Provides That Acme Was Not A Successor To A&P For Any Purpose, Including FMLA Liability. Acme’s acquisition of A&P stores, through the Bankruptcy Court, was made “free and clear” of all liens or claims, specifically including claims based on successor liability or relating Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 8 of 31 PageID: 318 5 to A&P’s then-current or former employees. The applicable sale order (issued by a bankruptcy judge), the Bankruptcy Code, and case law, all confirm that Acme is not subjected to successor liability based upon any actions, omissions, or events when A&P was Podurgiel’s employer. Two closely-related cases regarding successorship liability and bankruptcy orders will assist this Court in analyzing whether Acme is a successor to A&P in this case. First, in In re Trans World Airlines, 322 F.3d 283 (3d Cir. 2003), the Third Circuit addressed “the doctrine of successor liability” out of a bankruptcy court’s approval of a sale of assets from Trans World Airlines to American Airlines, and the court held that 11 U.S.C. § 363(f) properly extinguished American Airlines’ liability for employment discrimination claims stemming from TWA. Id. at 284-85. The Third Circuit affirmed that a bankruptcy court can issue a sale order that provides assets to a buyer free and clear of claims, including employment discrimination claims, and that such a bankruptcy order rendered it unnecessary “to speculate as to whether there is a basis for successor liability” under non-bankruptcy law. Id. at 288 & n.4. Second, in In re Christ Hospital, 2014 WL 2135942 (D.N.J. Bankr. May 22, 2014), this Court applied TWA and 11 U.S.C. § 363(f) when rejecting a former employee’s FMLA claim against an entity that purchased her former employer through the bankruptcy court. The entity, Hudson, argued that the sale order under which it acquired the former employer debtor—which found that Hudson was “not a successor” and “not a successor employer”—alleviated Hudson from having to respond to the plaintiff’s suit. Id. at *1. The former employee argued that “the successor liability provisions of 29 U.S.C. 2601 et seq. (FMLA) and 29 C.F.R. § 825.107 overcome or trump the ‘sale free and clear’ provisions of 11 U.S.C. § 363(f) and allow [plaintiff] to sue Hudson.” Id. This Court rejected that argument. Id. at *2-3. Considering TWA to be Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 9 of 31 PageID: 319 6 dispositive and binding, this Court found no basis to permit continued suit against Hudson by that plaintiff notwithstanding her FMLA successor liability argument. Id. Against this legal backdrop, Acme’s lack of successorship under bankruptcy law is clear and incontrovertible. The bankruptcy court held that Acme was not a continuation or substantial continuation of A&P and “shall not be considered a successor” to A&P: J. No Successor or Other Derivative Liability. The sale and transfer of the Acquired Assets to the Buyer, including the assumption by the Debtors and assignment, transfer and/or sale to the Buyer of the Transferred Contracts, will not subject the Buyer to any liability (including any successor liability) with respect to the operation of the Debtors’ business prior to the Closing or by reason of such transfer...The Buyer (i) is not, and shall not be considered a successor to the Debtors, (ii) has not, de facto or otherwise, merged with or into the Debtors, (iii) is not a continuation or substantial continuation, and is not holding itself out as a mere continuation, of any of the Debtors or their respective estates, businesses or operations, or any enterprise of the Debtors…. (SUMF at ¶ 8a.) (emphasis added). Significantly, the bankruptcy court was similarly clear in its implementing order: NOW, THEREFORE, IT IS ORDERED THAT: […] 15. Except with as expressly set forth in the Purchase Agreement, the Buyer and its successors and assigns shall have no liability for any Claim…whether known or unknown as of the Closing Date, now existing or hereafter arising…whether derivatively, vicariously, as a transferee or successor or otherwise…including…without limitation, claims that might otherwise arise under or pursuant to...(ii) the Fair Labor Standards Act…(xiv) any other state, local or federal employee benefit laws, regulations or rules or other state, local or federal laws, regulations or rules relating to, wages, benefits, employment or termination of employment with any or all Debtors or any predecessors...and (xxi) any common law doctrine of de facto merger or successor…liability, successor-in-interest liability theory or any other theory of or related to successor liability. (SUMF at ¶ 8b) (emphasis added). Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 10 of 31 PageID: 320 7 Accordingly, Acme is not A&P’s successor as a matter of federal law or “any common law doctrine of de facto merger or successor or transferee liability, successor-in-interest liability theory, or any other theory of or related to successor liability.” (SUMF at ¶ 8a-8c.) Podurgiel’s claim of FMLA interference (whether by asking to attend a meeting or by failing to restore him to his existing or equivalent employment position) necessarily relies on a finding that Acme is A&P’s successor because Podurgiel was not eligible for FMLA benefits as an Acme employee. In light of the dispositive holdings that Acme is not A&P’s successor as a matter of federal law or any common law successor liability doctrine, Podurgiel cannot show that Acme is “an employer subject to the FMLA’s requirements” as required to prevail on Count I. b) FMLA’s Own Regulation Shows That Acme Was Not A Successor. Even setting aside the binding order of the bankruptcy court that Acme was not a successor to A&P and was not holding itself out as a continuation of any of A&P’s operations (SUMF at ¶ 8a), the FMLA’s own regulation on successor liability would not permit a finding that Acme was a successor to A&P. The FMLA’s successor regulation is found at 29 C.F.R. 825.107 and provides for a multi-factor test. 29 C.F.R. 825.107(b). Eight factors are listed: (1) Substantial continuity of the same business operations; (2) Use of the same plant; (3) Continuity of the work force; (4) Similarity of jobs and working conditions; (5) Similarity of supervisory personnel; (6) Similarity in machinery, equipment, and production methods; (7) Similarity of products or services; and (8) The ability of the predecessor to provide relief. 29 C.F.R. 825.107(a)(1) –(a)(8). Case law on the regulation is limited. The most recent circuit court of appeals that addressed the regulation is the Ninth Circuit in Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770 (9th Cir. 2010). The facts of Sullivan share many similarities with the instant case. In Sullivan, a Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 11 of 31 PageID: 321 8 plaintiff argued that her new employer (Dollar Tree) was a successor-in-interest under the FMLA regulation to her former employer (Factory 2-U). Factory 2-U had gone into bankruptcy, and Dollar Tree acquired 40 Factory 2-U stores. Both Factory 2-U and Dollar Tree were retail stores. Id. at 775. After Dollar Tree took control of the stores, the store where plaintiff was employed closed for four weeks; in the intervening time, Dollar Tree “reconfigured” the store, assigned a construction crew to remodel the interiors, and hired set-up teams to perform other preparatory work. Id. at 775. Notwithstanding the four-week break, Plaintiff’s employment was considered “continuous” between Factory 2-U and Dollar Tree. Id. Comparing the Sullivan court’s treatment of the factors with the undisputed facts in the present record show that Acme is not a successor to A&P under the FMLA’s own regulation. (1) The First Factor Weighs In Favor Of Acme. The Sullivan court found that the first factor (substantial continuity of the same business operations) weighed against the finding of successorship. Id. at 783-84. Although both Dollar Tree and Factory 2-U were in the same building and were both retail stores selling discounted merchandise, the court found that Dollar Tree did not accept Factory 2-U’s merchandise, and sold additional and different products than Factory 2-U. Id. at 784. The court held that the fact that “both stores were ‘retail business operations’ is too general to demonstrate substantial continuity giving rise to successorship liability.” Id. at 784. Of course, both A&P and Acme are supermarkets—but the similarities end there. Acme removed A&P labeled products and other products that Acme markets did not sell. (SUMF at ¶ 12.) A&P liquor licenses were not transferred over to Acme, (SUMF at ¶ 25), leaving the new Acme stores without the ability to sell those products. Acme discontinued the A&P e-commerce business. (SUMF at ¶ 26.) Acme cancelled all vendor and meat supplier contracts that A&P had used, and added additional vendors that A&P had not used. (SUMF at ¶ 13.) Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 12 of 31 PageID: 322 9 In addition to those changes, Acme used a different merchandising strategy than A&P, and implemented its own plan in stores it took over from A&P. (SUMF at ¶ 15.) Acme’s plan was regimented, disciplined, and effectuated from Acme headquarters. (SUMF at ¶ 20.) Acme’s merchandising program displayed more product than A&P, used more fresh food than A&P, expanded the produce sections, expanded the bakery departments to carry more fresh bread, fresh rolls, and cakes, and expanded the floral departments. (SUMF at ¶¶ 16-18, 21.) Stores were re-designed physically to implement the new Acme marketing strategy. (SUMF at ¶ 20.) Acme felt these changes were necessary in order to avoid A&P’s fate with these stores (i.e., bankruptcy). (SUMF at ¶ 24.) Finally, the findings and order of the bankruptcy court bear significantly on this factor. The bankruptcy court found that Acme “is not a continuation or substantial continuation, and is not holding itself out as a mere continuation” of A&P. (SUMF at ¶ 8a.) Consequently, there is no basis on which to find that Acme has a “substantial continuity of the same business operations.” All of these changes show how the Acme changed the operations and merchandising of A&P stores, revealing even less continuity than Dollar Tree in Sullivan. Combining the changes with the bankruptcy court’s own findings that Acme is “not a continuation or substantial continuation,” this first factor weighs heavily against finding successorship here. (2) The Second Factor Weighs In Favor Of Acme. The Sullivan court found that found that the second factor (use of the same plant) was neutral even though Dollar Tree used the same building as the Factory 2-U location. 623 F.3d at 785. The court found that Dollar Tree’s substantial renovations nullified the effect of this factor. Id. Although Acme uses the same physical plant as did A&P stores, just like Dollar Tree in Sullivan, Acme also made significant revocations to the stores it acquired from A&P that tilt this factor in its favor. Acme had five separate crews who worked to convert the stores purchased Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 13 of 31 PageID: 323 10 from A&P over three day periods when the stores were closed to the public. (SUMF at ¶ 11.) Acme construction crews removed A&P cases, replaced signage both inside and outside the stores, and changed store design to implement the marketing strategy. (SUMF at ¶¶ 14 & 20.) Acme re-wired stores for technology, installed different registers, and added new computer systems for scales. (SUMF at ¶¶ 29 & 30.) These renovations tilt this factor in Acme’s favor of finding no successorship. (3) The Third Factor Is Neutral At Best. The Sullivan court found that the third factor (continuity of the work force) was not applicable to its case because Dollar Tree only kept on two employees from Factory 2-U stores. 623 F.3d at 785. Here, of course, Acme maintained employment for most (if not, all) of the union employees who were working at stores Acme purchased. (SUMF at ¶ 108.) But, still, this factor is neutral at best. Acme’s decision to maintain employment for existing A&P employees should not equitably cause it to become liable for A&P’s liabilities, especially when Acme’s decision was made with full knowledge that the bankruptcy court order absolved it of successor liability. Should courts construe this factor as weighing heavily in favor of successorship when new companies employ large segments of a bankrupt company’s work force, such a decision will only discourage continued employment by companies that rescue bankrupt and distressed companies out of bankruptcy. (4) The Fourth Factor Weighs In Favor Of Acme. The Sullivan court found that the fourth factor (similarity of jobs and working conditions) only “slightly” weighed in favor of successorship because the jobs of cashiers and shelf-stockers were similar and “[t]he working conditions likely were similar as well.” 623 F.3d at 785. In the case at bar, however, these facts weigh in Acme’s favor. Acme added new positions, such as a manual ordering clerk (as opposed to A&P’s computerized system for inventory), which allowed Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 14 of 31 PageID: 324 11 Acme to have more customization, planning, and discretion in terms of ordering products. (SUMF at ¶ 23.) In addition, Acme re-negotiated the collective bargaining agreements with each of its stores, including Local 464 (which represented employees at the Wall Township facility). (SUMF at ¶ 9.) Acme expanded the pool of bonus-eligible employees to include unionized departmental managers, a change from A&P’s practice. (SUMF at ¶ 37.) Finally, Acme was prohibited from considering any disciplinary actions taken by A&P for its newly-hired employees. (SUMF at ¶ 33.) All employees had a probationary period for the first 60 days of their Acme employment. (SUMF at ¶¶ 32 & 34.). So, while jobs may be similar between A&P and Acme, there is significant evidence of a change in working conditions that tilt this factor in Acme’s favor. (5) The Fifth Factor Weighs In Favor Of Acme. The Sullivan court found that the fifth factor (similarity of supervisory personnel) weighed in favor of no successor. 623 F.3d at 785-86. Acme “did not hire any A&P management employees above the Store Director level” with the exception of two individuals. (SUMF at ¶ 36.) Accordingly, this factor weighs against finding A&P/Acme successorship. (6) The Sixth Factor Weighs In Favor Of Acme. The Sullivan court found that the sixth factor (similarity in machinery, equipment, production methods) provided only “slight” support for successorship “because such equipment is common to most retail businesses.” 623 F.3d at 786. Once again, though, the facts in this case weigh this factor in Acme’s favor. Acme removed A&P’s computerized inventory program, instead preferring manual order-writing. (SUMF at ¶ 23.) Acme converted the front-end of stores, changed the check-out stands, installed different cash registers, installed new computer systems for scales, and replaced A&P case displays with new cases. (SUMF at ¶¶ 14, 28-30.) Acme combined meat and seafood departments and display cases, in contrast to A&P, and Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 15 of 31 PageID: 325 12 serviced both departments with one employee. (SUMF at ¶ 19.) Acme also installed new systems for tracking “shrink.”2 (SUMF at ¶ 21.) These changes show there were substantial changes in machinery and equipment between A&P and Acme. (7) The Seventh Factor Weighs In Favor Of Acme. The Sullivan court found that the seventh factor (similarity of products or services) weighed against successorship because Dollar Tree has a more expansive product lineup than Factory 2-U. 623 F.3d at 786. Similarly, Acme made several significant changes to products and services that weighs strongly against a finding of successorship. In addition to the previously- described changes, including a new merchandising strategy and equipment changes, supra, Acme changed several services and products from A&P. A&P liquor licenses were not transferred over to Acme, (SUMF at ¶ 25), leaving the new Acme stores without the ability to sell beer and wine until new regulatory approvals could be obtained, if at all. Acme discontinued the A&P e-commerce business. (SUMF at ¶ 26.) Acme cancelled all vendor and meat supplier contracts that A&P had used, and added additional vendors that A&P failed to use. (SUMF at ¶ 13.) Acme changed the A&P advertising strategy by adding more print advertisements, having greater markdowns on leading items, and less radio and media spots. (SUMF at ¶ 22.) In light of these changes to products and services, Acme has done more than enough to demonstrate that this factor weighs in its favor and against a finding of successorship with A&P. (8) Conclusion 2 “Shrink” is the overall term to describe goods lost to damage, spoil, theft, etc. Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 16 of 31 PageID: 326 13 Based on a review of the factors contained in the regulation,3 as informed by the Ninth Circuit’s evaluation in Sullivan,4 Acme is not a successor to A&P under the FMLA. Acme changed many aspects of the stores’ merchandise, advertising, internal operations, working conditions, and supervisory personnel. Acme added new products and ended A&P services. Acme felt these changes were essential to avoid A&P’s fate. Other than the simple fact that both A&P and Acme were supermarkets, there is insufficient evidence to conclude that there was a substantial continuity of operations required to find FMLA successorship. Because Acme is not a successor under the FMLA’s own regulation, Podurgiel’s claim for FMLA interference (either for asking him to an orientation meeting or lack of restoration) fails. 2. Acme Did Not Interfere With Podurgiel’s Leave Through An Orientation Meeting Or By Failing To Restore Him To His Prior Position. Setting aside successorship, Podurgiel’s claim of FMLA interference due to a request he 3 The Sullivan court found the eighth factor (ability of predecessor to provide relief) was inapplicable to the analysis in cases where the predecessor company had ceased to exist. 623 F.3d at 786. 4 Neither of this Court’s two cases addressing 29 C.F.R. § 825.107 provide persuasive analysis. In Miller v. Level 3 Communications, 2005 WL 1529419 (D.N.J. June 29, 2005), the Court did not analyze each factor but, instead, considered several facts in totality and determined successor liability was present. Although the defendant raised a defense on the basis of a bankruptcy order that declared it was not a successor, the Court wrote that there was an “absence of any controlling authority” on whether a Section 363(f) finding could preclude federal statutory liability. Id. at *9. The Court evidently was not aware of the Third Circuit’s decision in TWA, which was issued three years earlier and is binding. Perhaps for that reason, the Court erred when it held that the FMLA regulatory factors “outweigh[ed] any effect of the Bankruptcy Order.” Id. at *9. But see TWA, 322 F.3d 288 n.4 (declining to address the non- bankruptcy law basis offered to support a finding of no successorship, assuming that such liability could exist “but for the Sale Order” from the bankruptcy court.). Moreover, in In Re Christ Hospital, a 2014 opinion of the Bankruptcy Court for the District of New Jersey, the Court explicitly rejected Miller and held that there was no basis for the plaintiff to pursue her FMLA claims against the buyer as a successor. 2014 WL 2135942 (D.N.J. Bankr. May 22, 2014). The facts in Vanderhoof v. Life Extension Inst., 988 F. Supp. 507 (D.N.J. 1997), are markedly different than this case. In Vanderhoof, the new entity involved did not appear to acquire its predecessor’s assets through a bankruptcy sale. See id. at 512. And the new entity maintained the exact same workforce, plant, services, and had only minor changes to working conditions. Id. at 513-14. On that basis, the Court found successor liability for the new entity. In Vanderhoof, the Court admitted that the FMLA successor regulation presented “an issue of first impression in this Circuit,” id. at 512, and case law has developed considerably more in the last twenty years. Accordingly, the persuasive value of Vanderhoof is limited. Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 17 of 31 PageID: 327 14 attend an orientation session or by not being restored to his prior position is meritless. First, the orientation session was held in October 2015 (SUMF at ¶ 42), and Podurgiel was asked to attend that session by the store director and meat department manager. (SUMF at ¶¶ 43 & 45.) Acme did not take over ownership of the A&P store at issue until the first week of November (SUMF at ¶ 10). At that time, Acme could only make requests of A&P to permit Acme employees to visit the store (SUMF at ¶ 47), and the only employees who asked Podurgiel to attend the orientation session were still A&P employees. (See SUMF at ¶ 10.) Acme cannot be liable for the conduct of individuals who were not in its employ at the time. Second, a request that Podurgiel attend orientation during his leave is a de minimis contact that does not constitute FMLA interference as a matter of law. In O’Donnell v. Passport Health Communications, Inc., 561 F. App’x 212 (3d Cir. 2014), the Third Circuit rejected an FMLA interference claim where “the [employer’s] contacts were aimed only at retaining [plaintiff] as an employee, and there is no evidence showing that [the employer] in any way hampered or discouraged [plaintiff’s] exercise of her right to medical leave, or attempted to persuade her to return from her leave early.” Id. at 218. The Third Circuit reaffirmed that “there is no right in the FMLA to be ‘left alone’ and be completely absolved of responding to the employer’s discrete inquiries.” Id. (internal citation and quotation marks omitted). Podurgiel’s deposition testimony reveals that he found out about the orientation after he called the store during a weekly check-in, the orientation lasted only between two to four hours, that he filled just filled out some paperwork, and that he never expressed to anyone at the store that he could not come in because of his leave. (SUMF at ¶ 44-46.) Much like the contacts in O’Donnell, the request from A&P supervisors that Podurgiel attend an orientation session when he was on FMLA leave were “aimed only at retaining” Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 18 of 31 PageID: 328 15 Podurgiel when the store transitioned to an Acme Markets Store. There is no evidence showing that A&P supervisors attempted to hamper or discourage Podurgiel’s leave, or to persuade him to end his leave early. Accordingly, Acme is entitled to summary judgment on Podurgiel’s claim for interference based on this orientation session meeting. See O’Donnell, 561 F. App’x at 218. Regarding Podurgiel’s restoration claim, Acme did not fail to restore him—it placed him back on its active employee roster within days of being informed that he was cleared to return to work. (SUMF at ¶ 83.) Moreover, “the FMLA does not provide employees with a right against termination for a reason other than interference with rights under the FMLA. [An employer], therefore, can defeat Plaintiff’s claim if it can demonstrate that Plaintiff was terminated for reasons unrelated to his alleged exercise of rights under the FMLA.” Lassalle v. Port Auth. of N.Y. & N.J., 2013 WL 6094339 *15 (D.N.J. Nov. 19, 2013) (citation omitted). As will be demonstrated below, see infra Section IV.B.1 & IV.B.2., Acme had legitimate, non- discriminatory reasons for its actions that led to a delay in informing Podurgiel that he had been restored to the active employee roster. Accordingly, any failure to restore him to his position was unrelated to his alleged exercise of rights under the FMLA. Even setting aside the clear lack of successorship between A&P and Acme, Acme is entitled to summary judgment on the merits for Count I of the Complaint. B. Acme Is Entitled To Summary Judgment On Counts II & IV Because Podurgiel Cannot Show A Prima Facie Case Of Retaliation Or Establish Pretext. Podurgiel makes two claims of retaliation against Acme, but neither can survive summary judgment. In Count II, Podurgiel claims that Acme retaliated against him “by firing him/not continuing his employment/refusing to hire him” for having taking FMLA leave. Complaint at ¶ 54. In Count IV, Podurgiel claims that Acme retaliated against him in violation of the LAD by terminating him or not continuing his employment because of his protected conduct Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 19 of 31 PageID: 329 16 in requesting and accepting an accommodation for a disability. Id. at ¶¶ 63-64. His claims fail for several reasons. First, Podurgiel fails to establish a prima facie case of retaliation. Second, assuming arguendo that he established a prima facie case, Acme has a legitimate, non-retaliatory explanation for the actions that occurred, and Podurgiel cannot show any casual connection between the actions he complains about and his invocation of FMLA leave or any other protected activity. Therefore, Podurgiel’s claim here fails at every step of the McDonnell Douglas framework and Acme is entitled to summary judgment on Counts II and IV. 1. Podurgiel Does Not Show A Prima Facie Case Of Retaliation. Podurgiel fails to prove each stage of his prima facie case for both Counts II and IV. To show a prima facie case of FMLA retaliation, a plaintiff must show that he invoked his right to FMLA-qualifying leave; that he suffered an adverse employment decision; and that the adverse action was causally related to this invocation of rights. Capps v. Mondelez Global LLC, 847 F.3d 144, 152 n.6 (3d Cir. 2017) (internal citations omitted). To establish a prima facie case for retaliation under the LAD, a plaintiff must plead that “(1) that []he engaged in a protected activity; (2) that []he suffered an adverse employment action; and (3) that there was a causal connection between the protected activity and the adverse employment action.” Davis v. City of Newark, 417 F. App'x 201, 202 (3d Cir. 2011); Gaines v. United Parcel Serv., Inc., 2014 WL 1450113 at *4 (D.N.J. Apr. 14, 2014); see also Victor v. State, 203 N.J. 383, 409 (2010) (discussing prima facie elements for retaliation under LAD). First, and for the reasons expressed above in Section IV.A., Podurgiel has no evidence that he invoked his right to FMLA-qualified leave because Acme is not a successor employer to A&P under the FMLA. “To invoke rights under the FMLA, employees must provide adequate notice to their employer about their need to take leave.” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 303 (quoting 29 U.S.C. § 2612(e)(2)). Here, the only record evidence is that Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 20 of 31 PageID: 330 17 Podurgiel printed out disability forms from a State of New Jersey website and sent those to A&P. (SUMF at ¶ 38.) Even assuming that those forms provided A&P with adequate notice of Podurgiel’s need for leave, there is no dispute Acme had no access to personnel files from A&P and that these forms were sent to A&P months before Acme took over ownership of the store. (SUMF at ¶¶ 48-50 & 38.) As Acme is not a successor to A&P, see supra Section IV.A & IV.B., Acme cannot be held to the knowledge that A&P had regarding Podurgiel’s invocation of rights under the FMLA. And it is unclear what “protected activity” Podurgiel claims as the basis for his Count IV claim.5 Second, Podurgiel cannot show an adverse employment action. Although termination or failure to hire are quintessential examples of an adverse employment action, Acme never terminated or failed to hire Podurgiel. Local store management invited Podurgiel to the Acme orientation session before Acme officially took over the Wall Township store (SUMF at ¶¶ 43 & 45), Podurgiel attended the Acme orientation (SUMF at ¶¶ 45 & 46), and Acme agreed to provide him with continued employment following his return to work if he could establish that he was on an approved medical leave of absence and that he was cleared to return to work. (SUMF at ¶ 62-63). Within a few days after now-Acme-employed store management received information that Podurgiel had met the return-to-work criteria in November 2015, Podurgiel was placed on the active employee roster by Acme HR staff in Malvern, Pennsylvania. (SUMF at ¶ 72.) And when an Acme HR supervisor Mitch Schaffer6 found out that Podurgiel was having trouble getting on the roster at the Wall Township store, Schaffer sent an email to Acme HR staff 5 Podurgiel’s requests for disability leave were made in September 2015—well before Acme took over the store in November 2015. 6 Schaffer was employed by A&P as an HR manager and was then hired by Acme in a similar capacity. (SUMF at ¶ 109.) Schafer was one of the few management-level A&P employees who were hired by Acme. (SUMF at ¶ 110.) Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 21 of 31 PageID: 331 18 and then advised Podurgiel by text message that the issue was fixed and he was “ok to return.” (SUMF at ¶ 87-93.) Although Podurgiel agrees that he received this text message, he did not respond to Schafer’s text message. (SUMF at ¶¶ 94-95.) In short: there was no adverse action. Third, Podurgiel cannot show any causal link between an invocation of FMLA rights (or any other protected activity) and any Acme actions about which he complains. To demonstrate a prima facie case of causation, a plaintiff must point to evidence sufficient to create an inference that a causative link exists between his FMLA leave (or protected activity) and his termination. Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 307 (3d Cir. 2012). If there is no unduly suggestive temporal proximity between the protected activity and adverse action,7 the court examines whether the proffered evidence, looked at as a whole, may suffice to raise the inference. Lichtenstein, 691 F.3d at 307. Here, Podurgiel has no evidence to demonstrate a causal link between his invocation of FMLA rights (or protected activity) and any Acme employment actions. There is no unduly suggestive temporal proximity here; Podurgiel invoked his FMLA rights, if at all, back on September 8, 2015, and Acme did not take over store management until early November 2015. (SUMF at ¶¶ 38 & 10.) Podurgiel wasn’t even cleared to return to work until November 16, 2015. (SUMF at ¶ 74.) Two months is not an unduly suggestive timeframe that can support an inference of retaliation. Even if Podurgiel construes his “invocation” of rights or his protected activity to be when he requested to resume work at Acme in mid-November 2015, Podurgiel’s store director did not 7 Although there is no fixed line to establish unduly suggestive temporal proximity, Lichtenstein, 691 F.3d at 307, three weeks appears to be a common threshold. Compare id. at 307 (citing cases where courts found an unduly suggestive timeframe ranging between two days and three weeks) with Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (three weeks between filing of a complaint and termination was not unduly suggestive). Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 22 of 31 PageID: 332 19 seek any new butchers, leading Mr. Schafer to assume that she will need Podurgiel to return to work as soon as his leave was completed (SUMF at ¶¶ 79 & 105), and the store director and meat manager invited him to the Acme orientation sessions to fill out paperwork and learn about the new Acme management (SUMF at ¶ 42-46). Both the store director and assistant store director expected that Podurgiel would return to the store when he returned from leave. (SUMF at ¶¶ 101 & 104.) These facts show that his supervisors took steps to facilitate his expected transition to Acme on the same basis as all other active A&P employees who were not on FMLA leave, and that they has no ill-will against Podurgiel for taking leave or coming back from leave. These actions refute any causal link between Podurgiel’s FMLA leave or accommodations requests and the challenged actions that he complains Acme took against him. Apparently, there was a breakdown in communicating to Podurgiel that he was cleared on November 18, 2015 and in getting him on the schedule—but there is no evidence that such an omission was tied to his protected activity in invoking FMLA leave or an accommodation for his disability. Acme HR documents show that Podurgiel was restored to the active employee list by the central Acme HR office as early as November 18, 2015, just two days after he was medically cleared to return to work. (SUMF at ¶ 83.) Although Podurgiel and/or local store management may not have received that news or understand that Podurgiel was hired as an active employee as of that date, that misunderstanding was resolved no later than December 28, 2015, when now- Acme HR supervisor Mitch Schaffer sent a text message to Podurgiel to inform him that he was back on the schedule and to call the store. (SUMF at ¶ 93.) Podurgiel has stipulated that he is not seeking back pay damages after that date. (SUMF at ¶ 96.) None of these circumstances support a causal link between Podurgiel’s FMLA requests or any other protected activity and Acme’s Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 23 of 31 PageID: 333 20 actions in November-December 2015. Without having shown a prima facie case for FMLA retaliation, Podurgiel’s claims in Count II and Count IV fail. 2. Podurgiel Has No Evidence Of Pretext. Even assuming that Podurgiel stated a prima facie case for retaliation, which he has not, Acme has legitimate, non-discriminatory explanations for its actions and Podurgiel has no evidence to demonstrate pretext. Accordingly, his retaliation claims still fail. The Third Circuit explained that “showing pretext places a difficult burden on the plaintiffs.” Capilli v. Whitesell Const. Co., 271 F. App’x 261, 265 (3d Cir. 2008) (internal citation and quotation marks omitted) (FMLA retaliation case). To succeed in showing pretext, “it is not enough” for a plaintiff to show that the employer’s decision “was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” Id. at 265-66 (internal citations and quotation marks omitted). A plaintiff must show that the employer’s reasons contain “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions...that a reasonable fact finder could rationally find them unworthy of credence.” Id. at 266 (citations omitted). “FMLA retaliation claims require proof of the employer’s retaliatory intent.” Capps, 847 F.3d at 152 (citation omitted) (emphasis by the court).8 “Discrimination statutes allow employers to discharge employees for any reason whatsoever (even a mistaken but honest belief) as long as the reason is not illegal discrimination. Thus when an employee is discharged because of an employer’s honest mistake, federal anti-discrimination laws offer no protection.” Capps, 847 F.3d at 154 (internal quotation marks and citation omitted). Acme has well-established the “chaos” that described the transition period when Acme 8 The same McDonnell-Douglas standard and analysis applies to both LAD and FMLA retaliation claims. Zive v. Stanley Robert, Inc., 182 N.J. 436, 447 (2005); Capps, 847 F.3d at 151-52. Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 24 of 31 PageID: 334 21 began to take over A&P stores, and this chaos provides a legitimate, non-retaliatory explanation for Acme’s actions. According to Acme’s testimony, provided by vice president of human relations Dan Dosenbach: …Again, you have to appreciate the chaos that was going on. We had to hire roughly 7,000 employees from a period of basically October 1st to the first week of December. There was thousands of other employees at surrounding stores that were simply showing up to the new hire orientation saying can I have a job. And then you also had hundreds of people on the list both ways who were wrong, people who were on the list who should not have been on the list and people who were excluded from the list who should not have been excluded. And we were doing this week after week after week going and converting the stores. From these e-mails [Acme 0047], you can't reach the conclusion [that Podurgiel was entitled to receive an offer of employment had he provided the proper paperwork in November when he was ready to return] because I look at, I look at Melissa's e-mail dated November 10th, 2015 at 7:30 p.m.; God bless her, that was probably an early night for her during this period of time, but it seems to me that she's looking at it as Gregg [Podurgiel] was being transferred in. If he was being transferred in, that would mean he would be a new hire and would not be entitled to an employment. You then read Mitch's response and he says [Podurgiel] has been an associate for 15 years but he never says where. That's the key fact that's missing from all of these e-mails. (SUMF at ¶ 53). Melissa English, the Acme HR associate referred to above, also testified about the extensive work-load during this timeframe: …So like I said, we were all doing all kinds of work to help through this massive transition and I volunteered to help with the entering the express hires because we had one person who's an administrative assistant who was helping with it but she's hourly and you know couldn't really work around the clock. One of our other administrative assistants was essentially working around the clock to deal with all the payroll and processing; it was really a lot of work. So I said I can help manage some of these express hires because it turned out that every store had to hire like 30 people, 20 people... (SUMF at ¶ 56.) Notwithstanding this workload, Ms. English did, in fact, place Podurgiel on the active roster for Acme employees on November 18, 2015. (SUMF at ¶ 83.) Acme HR considered him hired as of November 16, 2015. (SUMF at ¶ 90.) Ms. English’s normal practice was to follow-up Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 25 of 31 PageID: 335 22 after entering such an employee and advise someone that the employee was added, but she did not recall any specific action taken regarding Podurgiel. (SUMF at ¶ 84.) Evidently, there was a miscommunication between the HR officials and local store officials, who apparently believed that Podurgiel was not on the roster and, accordingly, did not schedule him for a shift. This miscommunication shows no discriminatory motive or intent; instead, it is easily explained by the chaos of the transition from A&P to Acme, the overwhelming number of HR actions that were needed for so many stores in such a short period of time, and the workload of the personnel involved. (SUMF at ¶¶ 48-56 (describing chaos generally) & ¶¶ 68-77 (describing confusion among Wall Township store in particular) & ¶ 78 (Podurgiel’s situation was the first time that Ms. English had to handle an employee returning from a leave of absence).) Podurgiel has no evidence to show “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” with Acme’s explanations that a simple mistake or miscommunication between its HR office in Malvern and its local store officials lead to his temporary removal from the schedule. Acme employees from the local store level to the Acme HR leadership at its corporate headquarters in Malvern, Pennsylvania all testified consistently that former A&P employees who were on a leave of absence at the time a store transitioned from A&P to Acme would be entitled to return to work as Acme employees upon being medically cleared and a confirmation that their leave had been approved. (SUMF at ¶¶ 57-58 (English’s testimony); ¶¶ 60-61 (Schafer’s testimony); ¶¶ 63-65 (Acme’s position).) Podurgiel’s local store leadership also expected him to return. (SUMF at ¶¶ 101 & 104.) And, to further confirm the lack of discriminatory intent, when Mitch Schaffer—the former A&P HR manager who was later hired by Acme during the last week in December, found out that Podurgiel was having trouble getting on the schedule, Schaffer sent emails to investigate what happened, and told Podurgiel by Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 26 of 31 PageID: 336 23 text message that he was back and that he should call the store to get back on the schedule. (SUMF at ¶ 87-93.) In light of these facts, no reasonable fact finder could rationally find Acme’s explanations to be unworthy of credence. Therefore, there is insufficient record evidence for Podurgiel to demonstrate that Acme’s legitimate, non-retaliatory explanations for its actions were a pretext, and summary judgment in Acme’s favor is warranted for Count II and Count IV. C. Acme Is Entitled To Summary Judgment On Counts III & V Because Podurgiel Cannot Show A Prima Facie Case Of Disability Discrimination Or Establish Pretext. Podurgiel makes two claims of disability discrimination against Acme, but neither can survive summary judgment. In Count III, Podurgiel claims that Acme terminated his employment or did not continue his employment because of his disability or perceived disability. Complaint at ¶ 59. In Count V, Podurgiel claims that Acme failed to hire him because of his disability or for requesting an accommodation. Id. at ¶ 67. Both claims fail for substantially the same reasons. First, Podurgiel fails to establish a prima facie case of discrimination. Second, assuming arguendo that he established a prima facie case, Acme has a legitimate, non-retaliatory explanation for the actions that occurred, and Podurgiel cannot show any casual connection between the actions he complains about and his disability or perceived disability. Therefore, Acme is entitled to summary judgment on Counts III & V. 1. Podurgiel Does Not Show A Prima Facie Case Of Discrimination. Podurgiel fails to prove each stage of his prima facie case for both Counts III and V. To show a prima facie case of disability discrimination under the LAD, a plaintiff must show that: (1) the employee was handicapped; (2) the employee was otherwise qualified to perform the essential functions of the job and was performing them at a level that met the employer's expectations; (3) the employee suffered an adverse employment action because of the disability; and (4) the employer thereafter sought a similarly qualified individual for the job. Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 27 of 31 PageID: 337 24 Guarneri v. Buckeye Pipe Line Services Co., 205 F. Supp. 3d 606, 614 (D.N.J. 2016). The New Jersey Supreme Court described the elements of a prima facie case for failure-to-hire under the LAD as follows: (1) that plaintiff falls within a protected class; (2) that plaintiff was qualified for the work for which he or she applied; (3) that plaintiff was not hired; and (4) that the employer continued to seek others with the same qualifications or hired someone with the same or lesser qualifications who was not in the protected status. Victor v. State, 203 N.J. 383, 408-09 (2010) (citation omitted).9 Here, Podurgiel fails to establish he suffered an adverse employment action because of his disability; that he was not hired for the position sought; or that Acme thereafter sought a similarly qualified individual for his job. Accordingly, his prima facie case fails. First, Podurgiel has failed to show an adverse employment action because of his disability or that he was not hired for the position he sought. As described in Section IV.B.1., termination or a failure to hire are quintessential examples of an adverse employment action but Acme never terminated or failed to hire Podurgiel. Acme HR added him to the active roster on November 18, 2015—just two days after learning that he met the return-to-work criteria—and Acme HR considered him in the proper system. (SUMF at ¶ 83.) At most, Acme failed to reach out and inform Podurgiel that he was added to the active roster on November 18, 2015, an omission that was corrected no later than December 29, 2015 by Mitch Schaffer. (SUMF at ¶ 93.) But there is no evidence that this omission was “because of [his] disability.” And Podurgiel 9 The McDonnell Douglas framework applies to failure-to-hire cases. Viscik v. Fowler Equipment Co., 173 N.J. 1, 13-14 (2002). “To prove pretext…a plaintiff must do more than simply show that the employer's reason was false; he or she must also demonstrate that the employer was motivated by discriminatory intent.” Id. at 14. Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 28 of 31 PageID: 338 25 concedes, implicitly if not explicitly, that the December 29 text message was the unqualified job offer he sought, as he does not seek back wages after this date. (SUMF at ¶ 96.) Even if the Court considers Acme’s actions to be an adverse employment action because of disability or sufficient for a failure to hire claim, there is no evidence that Acme sought a similarly qualified individual for Podurgiel’s job. In an email exchange on November 10, 2015, Mitch Schaffer (then an A&P HR director) wrote to Acme HR to inform them that Podurgiel was out on an authorized medical leave of absence and that “Joan, the Store Director did not ask for an additional Meat Cutters [sic] so my assumption is she will need him when he is ready to return.” (SUMF at ¶ 79.) Consistent with this email, Joan Perez testified that she has no recollection of hiring any butchers for the Wall Township store after the store re-opened as an Acme Markets store on November 6, 2016. (SUMF at ¶ 105.) During Perez’s deposition, she was asked about the number of butchers employed in that store as of October 2016—just about a year after Podurgiel attempted to return to the store. (SUMF at ¶ 106.) Perez recalls that three of the five employees on the list had been employed as butchers at the Wall Township store at least since October 2014—in other words, a year before Podurgiel’s initial request for FMLA in September 2015. (SUMF at ¶ 107.) For the remaining two individuals, Perez does not recall when they joined the store—whether it was well before, just before, or just after Acme acquired the Wall Township store. (Id.) Consequently, Podurgiel cannot show the last element of a prima facie case for disability discrimination. 2. Podurgiel Has No Evidence Of Pretext. Even if Podurgiel had a prima facie case of disability discrimination, he cannot establish any pretext. As described in Section IV.B.2, the chaos of the transition period and the overwhelming workload of the Acme HR employees and the local store directors adequately demonstrate Acme’s legitimate, non-discriminatory reasons for its actions. And Podurgiel has no Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 29 of 31 PageID: 339 26 evidentiary basis to question that chaos, to cast doubt on Acme’s explanation, or to suggest that invidious discrimination was the true reason for Acme’s actions, which is his burden at a pretext stage. See, e.g., Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (“[t]o discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.”); Garvin v. Progressive Cas. Ins. Co., 2010 WL 1948593 (E.D. Pa. May 10, 2010) (finding no pretext because “it is well-established a court will not second-guess a company’s business judgment or decisional process” and “an employer can make a ‘bad’ decision to terminate an employee as long as that ‘bad’ decision is not based on a disability”). To further undercut any suggestion of discriminatory intent, the actions of Acme HR staff and local store officials all support a conclusion that Podurgiel was invited to and expected to return to work as soon as he was medically cleared to do so. As described in Section IV.B.1, local store management invited Podurgiel to the Acme orientation session before Acme officially took over the Wall Township store (SUMF at ¶¶ 43 & 45), Podurgiel attended the Acme orientation (SUMF at ¶ 42), local store leadership expected Podurgiel to return to work at Acme (SUMF at ¶¶ 101 & 105), and Acme agreed to provide him with continued employment following his return to work if he could establish that he was on an approved medical leave of absence and that he was cleared to return to work. (SUMF at ¶ 62-63). This conduct directly refutes any suggestion that Acme’s delay in communicating clearly to Podurgiel that he was eligible to return to the schedule was motivated by discriminatory animus. Accordingly, his claims in Count III and Count V fail due to an inability to establish pretext. Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 30 of 31 PageID: 340 27 V. CONCLUSION For any and all of the reasons set forth herein, Defendant’s motion for summary judgment should be granted in its entirety. Respectfully submitted, COZEN O’CONNOR, P.C. Dated: February 15, 2018 /s/ Raymond A. Kresge______________________ By: Raymond A. Kresge, Esq. (NJ ID 009031996) Elizabeth A. Malloy, Esq. (pro hac vice) Jason A. Cabrera, Esq. (NJ ID 077342013) One Liberty Place 1650 Market Street, Suite 2800 Philadelphia, PA 19103 Phone: (215)-665-2000 Fax: (215)-665-2013 Attorneys for Defendant Acme Markets, Inc. Case 3:16-cv-02262-PGS-TJB Document 46 Filed 02/15/18 Page 31 of 31 PageID: 341