Shabazz v. N.J. Transit

BRIEF in Support

D.N.J.January 28, 2017

HUGHES JUSTICE COMPLEX • TELEPHONE: (609) 292-9989• FAX: (609) 984-6446 New Jersey Is An Equal Opportunity Employer • Printed on Recycled Paper and Recyclable CHRIS CHRISTIE Governor State of New Jersey OFFICE OF THE ATTORNEY GENERAL DEPARTMENT OF LAW AND PUBLIC SAFETY DIVISION OF LAW CHRISTOPHER S. PORRINO Attorney General KIM GUADAGNO Lt. Governor 25 MARKET STREET PO Box 112 TRENTON, NJ 08625-0112 MICHELLE L. MILLER Acting Director Ashwath.trasi@dol.lps.state.nj.us January 28, 2017 Via ECF Hon. Madeline C. Arleo, U.S.D.J. Martin Luther King Building & U.S. Courthouse 50 Walnut Street, Courtroom 2A Newark, NJ 07101 Via ECF Magistrate Judge Leda D. Wettre Martin Luther King Building & U.S. Courthouse 50 Walnut Street ,Courtroom 4A Newark, NJ 07101 Re: Shabazz v. NJ Transit, et. al Civil Action No.: 14-04565 Dear District Judge Arleo & Magistrate Judge Wettre: My office represents Defendant New Jersey Transit (“NJT”) in the above matter. Defendant’s Motion for Summary Judgment was filed electronically on January 27, 2017 per the Court’s November 2, 2016 Order (ECF No. 40). However, when reviewing the corresponding Notice of Electronic Filing today I realize that I inadvertently filed a PDF version of the cover- page of the Defendant’s Brief in Support of Summary Judgment (which had been saved separately to add to the body of the Brief) rather than the Brief itself. Having realized my error I am filing a copy of Defendant’s Brief in its entirety, herewith. In addition, I realize that in electronically filing Defendant’s Motion, I inadvertently set the time for Plaintiff to file his opposing papers for February 21, 2017, which is actually the Motion Day, rather than February 7, 2017. If Your Honors have any questions please have Your respective Chambers contact me. Case 2:14-cv-04565-MCA-LDW Document 48 Filed 01/28/17 Page 1 of 2 PageID: 582 January 28, 2017 Page 2 Respectfully Submitted, CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY By: Ashwath S. Trasi Deputy Attorney General Encl. cc: Bernard Shabazz via certified and regular mail (PO Box 3529, Trenton, NJ 08629) Case 2:14-cv-04565-MCA-LDW Document 48 Filed 01/28/17 Page 2 of 2 PageID: 583 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF NEWARK BERNARD SHABAZZ Plaintiff, v. NEW JERSEY TRANSIT; Defendants. : : : : : : : : : : Docket No. 14-cv-04565-MCA- LDW Hon. Madeline C. Arleo, U.S.D.J. BRIEF IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT CHRISTOPHER S. PORRINO ACTING ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street, P.O. Box 112 Trenton, New Jersey 8625 Attorney for Defendant Ph: (609) 292-9989 On the Brief Ashwath S. Trasi Deputy Attorney General Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 1 of 33 PageID: 584 i TABLE OF CONTENTS PAGE PRELIMINARY STATEMENT .............................................................................. 1 STATEMENT OF FACTS ........................................................................................ 4 LEGAL ARGUMENT ............................................................................................... 4 STANDARD OF REVIEW ....................................................................................... 4 I. PLAINTIFF’S FIRST AMENDED COMPLAINT SHOULD BE DISMISSED WITH PREJUDICE BECAUSE HIS CLAIMS UNDER TITLE VII ARE BARRED BY THE STATUTE OF LIMITATIONS ........................... 6 II. PLAINTIFF HAS FAILED TO ESTABLISH DISCRIMINATION UNDER TITLE VII ....................................................................................... 8 A. Plaintiff Cannot Show That He Suffered Disparate Treatment Based on His Race ..................................................................................... 9 B. Plaintiff Has Failed to Establish Disparate Impact Under Title VII ...........................................................................16 III. NO REASONABLE JUROR COULD FIND THAT PLAINTIFF SUFFERED RETALIATION UNDER TITLE VII ....................................18 A. No Reasonable Juror Could Find That The Write-Up Plaintiff Received In 2012 Constitutes Retaliation Under CEPA .........................................15 B. No Reasonable Juror Could Find That the Write-Ups Plaintiff Received In 2014, Or the Letter Scheduling Him to Attend A “Customer Complaint” Class Constitutes Retaliation Under Title VII ...................................................................................................20 IV. PLAINTIFF IS NOT ENTITLED TO PUNITIVE DAMAGES .................................................................................27 Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 2 of 33 PageID: 585 ii CONCLUSION ........................................................................................................27 TABLE OF AUTHORITIES FEDERAL CASES Anderson v. Liberty, Inc., 477 U.S. 242 (1986) ..................................................... 5, 6 Baldwin County Welcome Center v. Brown, 466 U.S. 147 (1984) ............................................................................................ 5, 7 Baxter v. AT&T Commc’ns, 712 F.Supp 1166 (D.N.J. 1989) .............................................................................. 12 Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53 (2006) ........................................................................................ 8, 18, 22 Colburn v. Upper Darby Twp., 946 F.2d 1017 (3d Cir. 2002) .................................. 6 Curley v. Klem, 298 F.3d 271 (3d Cir. 1991) ............................................................ 5 Domm v. Jersey Printing Co., 871 F.Supp. 732, (D.N.J. 1994) .............................................................................. 27 Fuentes v. Perskie 32 F.3d 759 (3d Cir. 1994) ..................................................................................... 25 Goosby v. Johnson & Johnson Med., Inc. 228 F.3d 313 (3d Cir. 2000) ..................................................................................... 9 Harel v. Rutgers, the State University, 5 F.Supp.2d 246 (D.N.J. 1998) ................................................................................. 6 Hugh v. Butler County Family YMCA, 418 F.3d 265, cert. denied, 546 U.S. 1094 (2006) .................................................. 6 Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (U.S. 1977) .................................................................................... 9, 25 Krouse v. Am. Sterilizer Co., 126 F.3d 494, (3d Cir. 1997) ................................... 19 Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 3 of 33 PageID: 586 iii LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217 (3d Cir. 2007) .................................................................................... 19 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, (1986) ............... 5 McDonnell Douglas v. Green, 411 U.S. 792 (1973) .......................................... 9, 24 Mosel v. Hills Dep’t Stores, 789 F.2d 251(3rd Cir. 1986) ..................................... 6,7 NAACP v. N. Hudson Reg'l Fire & Rescue, 665 F.3d 464 (3d Cir. N.J. 2011) ............................................................................ 16 Scott v. Harris, 550 U.S. 372 (2007) ......................................................................... 5 Shields v. Zuccarini, 254 F.3d 476 (3d Cir. 2001) .................................................... 5 Simpson v. Kay Jewelers, 142 F.3d 639 (3d Cir. Pa. 1998)............................... 13, 16 Woloszyn v. County of Lawrence, 396 F.3d 314 (3d Cir. 2005) ..................................................................................... 6 Ya-Chen Chen v. City Univ. of NY, 805 F.3d 59(2d Cir. 2015) ........................................................................................ 6 FEDERAL STATUTES§ 42 U.S.C. § 1981a(b)(1) ........................................................................................... 27 42 U.S.C. § 2000e-2 ................................................................................................... 1 42 U.S.C. § 2000e-3 ................................................................................................... 1 42 U.S.C. § 2000e-5(f)(1) .......................................................................................... 8 Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 4 of 33 PageID: 587 iv FEDERAL RULES Fed. R. Civ. P. 6(e) .................................................................................................... 7 Fed. R. Civ. P. 15(a)(2) ........................................................................................... 21 Fed. R. Civ. P. 16 ..................................................................................................... 21 Fed.R.Civ.P. 56(a) ..................................................................................................... 5, Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 5 of 33 PageID: 588 1 PRELIMINARY STATEMENT Plaintiff, Bernard Shabazz, filed the underlying Complaint on July 21, 2014, after a Charge of Discrimination he filed with the Equal Employment Opportunity Commission (“EEOC”) on March 15, 2013, in which he made the same allegations, was dismissed on August 28, 2013. He amended his July 21, 2014 Complaint on March 10, 2016. Plaintiff alleges in his First Amended Complaint that he was subjected to discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2 and §2000e-3. Plaintiff claims that that he and other African-American Bus Operators at NJT suffered from discriminatory disparate treatment with respect to the processing and disbursement of disability benefit payments, as compared to Caucasian Bus Operators. Specifically, Plaintiff alleges that NJT’s Worker’s Compensation and Disability Department engaged in a discriminatory pattern and practice of denying and delaying disability benefit payments to African-American Bus Operators in an effort to force them back to work early. Plaintiff also claims that he suffered retaliation from NJT in the form of unwarranted write-ups for committing violations, as a consequence of filing the March 15, 2013 EEOC Charge of Discrimination and his original July 21, 2014 Complaint. Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 6 of 33 PageID: 589 2 In reviewing the record of this case, it is unclear how exactly Plaintiff was wronged by NJT, let alone in a way that would demonstrate a discriminatory motive. The record shows that Plaintiff received his Disability Benefit Payments in a timely manner. After Plaintiff submitted his Application for Disability Benefit Payments on February 13, 2013, NJT approved the Payments on February 22, 2013, and Plaintiff was issued his Disability Benefit Checks at the end of the next payment period on March 1, 2013. Plaintiff does not even deny that he received the amount of compensation he was entitled to. In fact, Plaintiff did not even apply for disability benefits until NJT sent him a letter on February 4, 2013, with an attached application, advising him that he could do so. Moreover, Plaintiff’s bare allegations that Caucasian Bus-Operators receive their disability benefit payments at a quicker rate than African-American Bus Operators is not supported by even the slightest sliver of evidence. All Plaintiff has provided are the names of two (2) Caucasian Bus-Operators who allegedly received Disability Benefit Payments earlier than he did, and the names of five (5) African-American Bus-Operators whom he claims suffered the same “difficulties and treatment” as he did. However, Plaintiff cannot provide a single fact, let alone a material one, about the employees he identified from which a reasonable juror could even begin to try to find disparities in the timing of the processing and disbursement of their disability payments. Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 7 of 33 PageID: 590 3 Plaintiff’s Title VII retaliation claims are even more baseless, as Plaintiff alleges in his First Amended Complaint that a write-up he received for Careless Operation of his bus in 2012 somehow constitutes retaliation for complaints of discrimination he made in 2013 and 2014. Furthermore, while Plaintiff testified about receiving allegedly retaliatory write-ups in 2014, not a single one of those write-ups affected Plaintiff’s employment at NJT in a materially adverse way. It is clear from a review of Plaintiff’s deposition testimony that he is merely a disgruntled employee who believes that the policies of NJT did not apply to him while he was employed there. Plaintiff goes as far as to claim that he should have been receiving disability benefit payments without even applying for them, despite NJT’s Medical Policy clearly stating the employee must file an Application. It is clear that any delay Plaintiff experienced in receiving his disability benefit payments is due to his own failure in filing the proper paperwork available to him. Similarly with respect to his claims of “retaliation,” Plaintiff refuses to take responsibility for the violations he committed, instead, blaming any and every employee at NJT he can possibly name for his perceived wrongs, from the mechanic assigned to examine a malfunction on his bus to the Manager of NJT’s Worker’s Compensation and Disability Department, charged with processing the Worker’s Compensation and Disability Benefit Applications of NJT’s approximately eleven-thousand (11,000) employees. Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 8 of 33 PageID: 591 4 Amazingly, Plaintiff even blames NJT for one of the City of Newark’s surveillance cameras capturing him running a red light while operating an NJT Bus. While Plaintiff’s vague allegations are sufficient to meet the pleading standard for asserting his Title VII claims, the claims cannot survive at summary judgment. Courts have held that a “mere scintilla of evidence” is not sufficient for a non-moving party to survive a motion for summary judgment. The documents and testimony that Plaintiff has provided in support of his Title VII claims do not even reach that miniscule level. For these reasons, Defendant respectfully requests that this Court grant summary judgment and dismiss Plaintiff’s Complaint in its entirety. STATEMENT OF FACTS Defendant respectfully refers the Court to the separately captioned Statement of Undisputed Material Facts (“SOUMF”) attached to these submissions, together with the Certification of Deputy Attorney General Ashwath S. Trasi (Trasi Cert.) to the authenticity of the annexed exhibits. LEGAL ARGUMENT STANDARD OF REVIEW A party is entitled to summary judgment if it establishes that “there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 9 of 33 PageID: 592 5 matter of law.” Fed. R. Civ. P. 56(a). At the summary judgment stage, the court's function is to determine whether there is a genuine issue of fact for trial, not to weigh the evidence and determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In so doing, the court must construe the facts and inferences in the light most favorable to the non-moving party. Curley v. Klem, 298 F.3d 271, 277 (3d Cir. 2002). To defeat a motion for summary judgment, a factual dispute between the parties must be both genuine and material. Scott v. Harris, 550 U.S. 372, 380 (2007); Anderson, 477 U.S. at 247-48. A factual dispute is genuine if a reasonable jury could decide that factual dispute in favor of the non-movant. Id. 248. To be material, a factual dispute must, under the substantive law, affect the outcome of the suit. Id. The moving party bears the burden of establishing that no genuine issue of material fact exists. See Fed. R. Civ. P. 56(a). Once it has done so, the non- movant “must do more than simply show that there is some metaphysical doubt as to the material facts” in question. Scott, 550 at 380 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). To survive a motion for summary judgment, the non-movant must set forth specific facts showing a genuine issue for trial. See Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001). The opposing party must present more than a mere "scintilla of Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 10 of 33 PageID: 593 6 evidence" in his favor to survive a motion for summary judgment. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005) (quoting Colburn v. Upper Darby Twp., 946 F.2d 1017, 1020 (3d Cir. 1991)). Furthermore, in opposing a summary judgment motion, the non-movant may not rest his case on the bare allegations of his pleading. Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (2005), cert. denied, 546 U.S. 1094 (2006). Here, no genuine issue of material fact exists which should warrant a trial on Plaintiff’s claims. POINT I PLAINTIFF’S FIRST AMENDED COMPLAINT SHOULD BE DISMISSED BECAUSE HIS CLAIMS UNDER TITLE VII OF THE 1964 CIVIL RIGHTS ACT ARE BARRED BY THE STATUTE OF LIMITATION Title VII provides that where the EEOC has decided to dismiss a charge of unlawful employment practices filed by a grievant, the EEOC "shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved..." 42 U.S.C. § 2000e-5(f)(1)(emphasis added). Thus, Title VII plaintiffs have a 90-day period in which to file their claims after the EEOC has given them a right-to-sue letter. Mosel v. Hills Dep't Store, 789 F.2d 251, 252-53 (3d Cir. 1986); Harel v. Rutgers, the State University, 5 F.Supp.2d 246, 260 (D.N.J. 1998). Title VII's requirement that a suit be filed within 90 days of receipt of the EEOC's right to sue letter acts as a statute of limitations on such Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 11 of 33 PageID: 594 7 claims. Mosel, supra, 789 F.2d at 253. The 90-day limitations period begins to run when the plaintiff receives, either actually or constructively, the EEOC right-to-sue notice. Ibid. Fed. R. Civ. P. 6(e) provides the presumption that if the date of receipt of a notice served by mail is unknown or in dispute, courts will presume receipt three days after mailing. See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n.1, 104 S.Ct. 1723, 1724 n.1, 80 L.Ed.2d 196 (1984)(applying Rule 6(e) presumption to receipt of an EEOC right-to-sue notice); Mosel, supra, 789 F.2d at 253 n.2. Here, Plaintiff filed a Charge of Discrimination with the EEOC on March 15, 2013 making the same allegations he is making in this lawsuit, which is that NJT deliberately delayed his disability benefit payments based on his race, and that NJT has a “pattern” of engaging in this practice against its African-American employees. (SOUMF ¶¶1, 6-7, 10). It is clear from the April 21, 2014 letter that Plaintiff received from John Waldinger, the EEOC’s Director for its Newark Area Office, that Plaintiff had been issued a Notice of Right to Sue (“NRTS”) on August 28, 2013 with respect to his March 15, 2013 EEOC Charge of Discrimination, which advised him that he could pursue his discrimination claims in court within ninety (90) days from that date. (SOUMF ¶2). This meant that Plaintiff would have been required to file his lawsuit on or before November 26, 2013. Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 12 of 33 PageID: 595 8 However, due to Plaintiff contacting the EEOC and claiming that he never received the August 28, 2013 NRTS, the EEOC reissued the August 28, 2013 NRTS to him on April 7, 2014 advising him he had ninety (90) days from April 7, 2014 to file any lawsuit based on the allegations in his March 15, 2013 Charge of Discrimination. (SOUMF ¶3). Thus, Plaintiff would have been required to file his lawsuit on or before July 6, 2014 at the latest. The EEOC sent another letter to Plaintiff on April 21, 2014 advising him that he had ninety (90) days from April 7, 2014 to file his lawsuit based on the allegations in his March 15, 2013 Charge of Discrimination. (SOUMF ¶¶4-5). Despite receiving ample notice that he had to file his lawsuit on or before July 6, 2014, Plaintiff filed his lawsuit on July 21, 2014, fifteen (15) days later. (SOUMF 6). Plaintiff’s failure to file his lawsuit alleging Title VII claims within the time provided by 42 U.S.C. § 2000e-5(f)(1), despite having been given a second opportunity by the EEOC, nearly five (5) months after he was initially required to file his lawsuit on November 26, 2014, requires that the Court dismiss Plaintiff’s Complaint in its entirety with prejudice. POINT II PLAINTIFF HAS FAILED TO ESTABLISH DISCRIMINATION UNDER TITLE VII By claiming that disability benefit payments to him were delayed due to his race, while similarly situated Caucasian Bus Operators did not undergo delayed Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 13 of 33 PageID: 596 9 payments, Plaintiff is claiming he suffered disparate treatment under Title VII. To the extent Plaintiff is claiming that the delays were not intentional, he is claiming that NJT’s actions created a disparate impact where African-Americans suffered delays in their disability benefit payments compared with Caucasian Bus Operators. Plaintiff is unable establish either disparate treatment or disparate impact under Title VII. A. Plaintiff Cannot Show That He Suffered Disparate Treatment Based on His Race In order to make a prima facie Title VII discriminatory disparate treatment claim, a plaintiff must show that (1) he is a member of a protected class; (2) he suffered an adverse employment decision; and (3) “nonmembers of the protected class were treated more favorably.” Goosby v. Johnson & Johnson Med., Inc. 228 F.3d 313, 318-19(3d Cir. 2000). The United States Supreme Court has held that disparate treatment is found where: The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere facts of differences in treatment. Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 (U.S. 1977). Once a plaintiff has made a prima facie showing of disparate treatment, courts employ the burden shifting analysis articulated in the Supreme Court’s decision in McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973). This requires Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 14 of 33 PageID: 597 10 the employer to show a legitimate, non-discriminatory reason for the employment action. Id. at 678. In response, the plaintiff has to show the employer's proffered reason for the action was merely pretext for the discrimination. Ibid. Here, Plaintiff has failed to establish show he suffered an adverse employment action under Title VII based on when he received his disability benefits, and the record shows the timing of his payments was not delayed. Plaintiff filed his Application for Payment of Disability Benefits on or about February 13, 2013 which was finalized on February 22, 2013, after the Application was completed with corresponding medical reports and his supervisor’s approval. (SOUMF ¶¶43-50). Plaintiff was fully compensated for the time he was out of work for his alleged injury. (SOUMF ¶¶48, 50-51). The record shows that NJT’s Worker’s Compensation and Disability Department followed the process of processing Plaintiff’s Disability Benefits Application precisely as provided in NJT’s Medical Policy. (SOUMF ¶¶36, 38). In fact, NJT took the initiative to provide Plaintiff an Application for Payment Disability Benefit, because he never submitted an Application at the time of his alleged injury. (SOUMF ¶35, 37). Plaintiff makes the absurd claim that NJT should have begun paying him disability benefits in January 2013, even though he had not filed an Application for Payment of Disability Benefits. (SOUMF ¶¶39-41). Not only are Plaintiff’s Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 15 of 33 PageID: 598 11 allegation not supported by basic logic, they also contradict NJT’s Medical Policy. (SOUMF ¶¶40). While Plaintiff submitted a Medical Certificate from a treating physician on or about January 24, 2013, advising that he would be out of work until February 25, 2013, this Certificate was provided in support of a Worker’s Compensation Occupational Injury Claim. (SOUMF ¶¶23-24, 29-32). Plaintiff accuses NJT of “administrative error” for having him file a Worker’s Compensation Occupational Injury Claim rather than an Application for Payment of Disability Benefits, however, NJT’s Medical Policy makes clear that employees who claim to have suffered an “occupational injury” should submit a Worker’s Compensation Report. (See Certification of Deputy Attorney General Ashwath S. Trasi, at Exhibit K, New Jersey Transit Medical Policy at p. 2, ¶III(1)(a)) Plaintiff, to this day, claims his alleged injury in January 2013 was an occupational injury, not a “non-occupational injury” that would have required him to file an Application for Payment of Disability Benefits. (SOUMF ¶¶24, 42). NJT’s Worker’s Compensation Claims are handled by its Worker’s Compensation insurance carrier, Liberty Mutual Insurance, not by NJT, and Plaintiff was aware of this at the time he filed his occupational injury claim in January of 2013. (SOUMF ¶¶25-228). NJT submitted Plaintiff’s occupational injury claim to Liberty Mutual, and thus any claim Plaintiff has for a denial or Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 16 of 33 PageID: 599 12 delay of compensation for his Worker’s Compensation claim should be made against Liberty Mutual not NJT. (SOUMF ¶¶33-34). The New Jersey District Court has held that, “[t]o establish employment discrimination based on race [under Title VII], [a] plaintiff must show that [defendant] bore a racially discriminatory animus against him and that this animus was a determinative factor in the treatment accorded him during his tenure.” Baxter v. AT & T Commc’ns, 712 F. Supp. 1166, 1171-1172 (D.N.J. 1989). Plaintiff cite any facts from which a reasonable juror could find that NJT bore a racial animus against him which was a determinative factor in how his disability benefit payments were processed. Plaintiff alleges that Mary Ann Redmond, the former Manager of NJT’s Worker’s Compensation and Disability Department held a racial animus against him because she made him “feel” like a “criminal.” (SOUMF ¶¶54-55). Plaintiff claims Redmond did not believe that he was injured and that she thought he was trying to “defraud” NJT by applying for Worker’s Compensation or disability benefits. (SOUMF ¶55). However, Plaintiff cannot cite to anything Redmond told him to support this allegation, and admits that his allegation is based solely on his personal “perception”. Under Title VII, “feelings and perceptions of discrimination” even if they are “sincerely held” by a plaintiff, “do not provide a basis on which a reasonable jury can ground a verdict.” Ya-Chen Chen v. City Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 17 of 33 PageID: 600 13 Univ. of N.Y., 805 F.3d 59, 75 (2d Cir. 2015). When asked why he believed Redmond did not believe that he was really injured, he claimed it was because she was “incompetent”. (SOUMF ¶56). Plaintiff’s cruel and crude insult towards Redmond notwithstanding, “incompetence” is something entirely different from a discriminatory animus. Moreover, Plaintiff accused NJT of an “administrative error” for why he received his Disability Benefit payments at a later time than he expected. (SOUMF ¶41). Even if this were true, it is not evidence of a discriminatory animus. Plaintiff testified about two White NJT Bus Operators who he claims received their Disability Benefit Payments faster than he did. (SOUMF ¶¶60-63). Even if true, this is insufficient in and of itself to create an inference of discriminatory treatment based on race, because as the Third Circuit Court of Appeals has held, a plaintiff “cannot selectively choose a comparator” who was treated more favorably to make a discriminatory disparate treatment claim. Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir. Pa. 1998). While evidence of more favorable treatment of selected comparators from a non-protected category may be relevant in establishing discriminatory disparate treatment, such evidence cannot be viewed in a vacuum. Ibid. Thus, a plaintiff cannot establish an inference of discrimination based on isolated instances of certain selected members of a non- protected class being treated more favorably. Id. at 646. Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 18 of 33 PageID: 601 14 Moreover, Plaintiff has failed to provide any evidence about the circumstances of the two White Bus Operators he identified, or their applications for disability benefit, from which a reasonable juror would be able to find that they received more favorable treatment than African-American Bus Operators when it comes to applying for and receiving disability benefits. Plaintiff admitted he did not know: 1) When one of the identified White Bus Operators (Rick Sainowski) applied for disability benefits; 2) Whether either of the identified White Bus Operators applied for Worker’s Compensation for occupational injuries with Liberty Mutual or for disability benefits with NJT’s Worker’s Compensation and Disability Department ; 3) What these individuals’ claimed injuries were; 4) Who treated them for their injuries; 5) What their respective return to work dates were; 6) The amount of time one of them (Sainowski) was out of work for ; or 7) How long it took either of them to receive a check for disability benefits after having applied for them. (SOUMF ¶¶61-62). Similarly, Plaintiff has failed to provide any evidence that would support his allegation that NJT has a “pattern of deliberately delaying and/or denying [disability benefit] payments to African Americans.” (SOUMF ¶7). Plaintiff alleges in his First Amended Complaint that five (5) other African-American employees at NJT experienced “similar if not identical difficulties and treatment” Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 19 of 33 PageID: 602 15 as he did with respect to applying for and receiving disability benefits. (SOUMF ¶¶12, 64). However he provides no evidence of their alleged mistreatment. First, with respect to three (3) of the five (5) African-American Bus Operators he identified (Michelle Johnson, Dexter October and Annie Lunsford) Plaintiff testified that they applied for Worker’s Compensation for occupational injuries, which are handled by Liberty Mutual, not NJT’s Worker’s Compensation and Disability Department. With respect to the other two (2) African-American Bus Operators he identified, Plaintiff admitted he did not know whether they applied for Worker’s Compensation with Liberty Mutual for occupational injuries or for Disability Benefit Payments for non-occupational injuries with NJT’s Worker’s Compensation and Disability Department. (SOUMF ¶¶68-69). Plaintiff also admitted that he did not know certain basic information with respect to the majority, if not all, of the African-American Bus Operators he identified and their alleged applications for compensation for time at work they missed due to an injury or disability, including: 1) When they were injured; 2) The date they applied for benefits; 3) How long they were out of work; 4) What their respective return to work dates were; 5) Whether they submitted Medical Certificates verifying their claimed injuries; or Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 20 of 33 PageID: 603 16 6) How many weeks they were out of work for due to their claimed injuries. (SOUMF ¶¶66-69). While bare assertions of certain, selected members of a non-protected group receiving favorable treatment may be acceptable to create an inference of discrimination at the pleadings stage where a plaintiff’s burden is not onerous, it is unacceptable at the pretext stage at summary judgment. Simpson, supra. 142 F.3d at 646. To survive summary judgment, a plaintiff must provide “evidence from which to infer discrimination apart from the fact that some members of one group are sometimes treated better and sometimes treated worse than members of another group.” Ibid. Plaintiff has failed to meet that burden here. Therefore, Plaintiff’s claims of Title VII discrimination based on alleged disparate treatment regarding the processing of his Disability Benefit Payments due to his race, and referenced at paragraphs 6 and 8-15 of his First Amended Complaint, should be dismissed with prejudice. B. Plaintiff Has Failed to Establish a Prima Facie Claim for Disparate Impact Under Title VII To prove disparate impact, a plaintiff must show that an “application of a facially neutral standard has caused a significantly discriminatory ... pattern.” NAACP v. N. Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476-477 (3d Cir. N.J. 2011). To make this showing, a plaintiff has to prove the “existence of a significant statistical disparity” and that “the disparity [he] complain[s] of is the result of one Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 21 of 33 PageID: 604 17 or more of the employment practices that [he is] attacking." Ibid. In a disparate impact case, the burden shifting analysis requires the employer to show that the challenged practice is "job related ... consistent with business necessity.” Id. at 477. A plaintiff can overcome an employer's business-necessity defense by showing that alternative practices would have less discriminatory impact. Ibid. Plaintiff has also not provided any “significant statistical disparity” between the timing of Disability Benefit applications processed at NJT for African American employees in contrast to Caucasian employees, and therefore he has failed to make a prima facie disparate impact claim under Title VII. At paragraph 12 of his First Amended Complaint, Plaintiff alleges that: [NJT’s] workers compensation payment process has a significant disparate impact on minority employees and bus operators at the Orange Garage, which is 80% African American, insofar as white employees and bus operators at the Howell, Meadowlands and Fairview Garages, which is 80% Caucasians obtain more favorable results in the disability workers compensation payment, as there is no delay in their contractual worker compensation payments. (SOUMF ¶11). However, at his deposition, Plaintiff admitted that he had no evidence to verify these “statistics” for the racial disparity between the Bus Operators at Orange Bus Garage (eighty-percent (80%) of whom are allegedly African- American) as compared to the Howell, Meadowlands and Fairview Bus Garages (where eighty-percent (80%) of the Bus Operators are allegedly Caucasian). Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 22 of 33 PageID: 605 18 Plaintiff claimed he overhead this “information” being stated by two Regional Supervisors, who were allegedly responding to complaints by African-American employees at Orange Bus Garage claiming to have received their disability benefit payments late. (SOUMF ¶71) Moreover, Plaintiff admitted that: 1) He has no knowledge, whatsoever, about how many Bus Operators work at NJT’s Howell, Meadowlands or Fairview Bus Garages; 2) He’s never seen a list of the Bus Operators at these other Bus Garages; and 3) He has never even stepped foot in these other Bus Garages. (SOUMF ¶70). Therefore, Plaintiff has clearly failed to meet his burden of establishing a prima facie Title VII disparate impact claim, and therefore, his disparate impact claims should be dismissed with prejudice. POINT III NO REASONABLE JUROR COULD FIND THAT PLAINTIFF SUFFERED RETALIATION UNDER TITLE VII A. No Reasonable Juror Could Find That The Write-Up Plaintiff Received On April 5, 2012 Constitutes Retaliation Under Title VII Title VII “forbids an employer from ‘discriminat[ing] against’ an employee or job applicant because that individual ‘opposed any practice’ made unlawful by Title VII or ‘made a charge, testified, assisted, or participated in’ a Title VII proceeding or investigation.” Burlington Northern & Santa Fe Ry. v. White, 548 Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 23 of 33 PageID: 606 19 U.S. 53, 56, 126 S. Ct. 2405, 2408, 165 L. Ed. 2d 345, 353 (2006) (quoting 42 U.S.C.A. § 2000e-3(a)). In order for a plaintiff to establish a prima facie Title VII retaliation claim, a plaintiff must show that: (1) he engaged in protected activity, (2) the employer took a materially adverse action against him, and (3) there was a causal connection between the protected activity and the employer's action.” LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 231 (3d Cir. 2007). Once again, courts apply the McDonnell-Douglass analysis for Title VII retaliation, requiring the employer to articulate a legitimate, non-retaliatory reason for its adverse employment action, which the plaintiff can try to rebut by showing the employer’s stated legitimate business reason is pretext for a retaliatory act. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997). Plaintiff cannot make a prima facie retaliation claim under Title VII because he cannot meet the second and third prong of the retaliation standard. Plaintiff alleges in his First Amended Complaint that Defendant retaliated against him for making complaints about the alleged discriminatory delay of his Disability Benefit Payments. (SOUMF ¶14). Thus, his “protected activity” would be his filing of his March 15, 2013 Charge of Discrimination with the EEOC or his original Complaint filed in this matter on July 21, 2014. (SOUMF ¶¶1, 6). However, the only example that Plaintiff gives in his First Amended Complaint of an act of retaliation is a write-up for Careless Operation-Poor Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 24 of 33 PageID: 607 20 Driving he received in June of 2012, over two (2) years before he filed his original Complaint in July of 2014, and eight (8) months before he filed his Charge of Discrimination with the EEOC in March of 2013. (SOUMF ¶¶15, 72-74, 79). Since the alleged June 2012 write-up precedes his alleged “protected activity,” by definition a reasonable juror could not find that it constitutes an act of retaliation under Title VII. Therefore, as Plaintiff has clearly failed to establish retaliation under Title VII, the Court need not engage in an extensive burden-shifting analysis, and should simply dismiss Plaintiff’s sole Title VII retaliation claim with prejudice. B. No Reasonable Juror Could Find That the Write-Ups Plaintiff Received in 2014, Or The Letter Scheduling Him to Attend a “Customer Complaint” Class Constitutes Retaliation Under Title VII At his deposition, Plaintiff testified about three alleged incidents he claims are examples of Title VII retaliation against him by NJT for filing complaints about alleged discriminatory disparate treatment, which he did not assert in either his original July 21, 2014 Complaint or his March 10, 2016 First Amended Complaint. (SOUMF ¶¶15, 83-100). The actions by NJT that Plaintiff claims to be retaliatory are:  A write-up he received for an Americans with Disabilities Act (ADA) Violation on August 24, 2014;  A violation he received for Cutting Scheduled Work on September 26, 2014; and Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 25 of 33 PageID: 608 21  His supervisor sending him a letter to attend a class on customer complaints on October 8, 2014. (SOUMF ¶84). As Plaintiff did not include these allegations in his original July 21, 2014 Complaint or his First Amended Complaint filed March 10, 2016, the Court should bar Plaintiff from asserting claims related to the 2014 write-ups and notice to attend a class in his lawsuit against NJT. If Plaintiff intended to include these allegations as part of his lawsuit, he had an opportunity to do so pursuant to Fed. R. Civ. P. 15(a)(2). Pursuant to Fed. R. Civ. P. 16, a litigant seeking to amend a pleading after the applicable deadline is required to make a threshold showing of good cause for failure to meet that deadline. Here, the Court already gave Plaintiff the opportunity to amend his Complaint once (See Electronic Case File (ECF) No. 22), despite his moving to do so on December 1, 2015 (See ECF No.19), after the Court’s October 15, 2015 deadline to so, as set forth in the Court’s July 23, 2015 Pre-Trial Scheduling Order (See ECF No. 13). If Plaintiff intended to assert these claims of retaliation based on actions allegedly taken against him in 2014, he could have included them in his March 10, 2016 First Amended Complaint. Plaintiff’s failure to do this, even after the Court gave him an opportunity to file an Amended Complaint to include any and every issue he believes to be Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 26 of 33 PageID: 609 22 relevant to his allegations against NJT, should preclude him from making the alleged 2014 retaliatory actions part of this lawsuit. However, even if the Court allows these allegations to be a part of the Plaintiff’s lawsuit against NJT, these claims should be dismissed with prejudice because they do not support a prima facie claim for retaliation under Title VII. First, the actions Plaintiff complains of are not “materially adverse actions” sufficient to establish retaliation under Title VII. In order to meet the second prong of the Title VII retaliation standard, the action taken by the employer must be “materially adverse to a reasonable employee.” Burlington N. supra., 548 U.S. at 57. “The anti-retaliation provision [of Title VII] protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Id. at 67. Therefore, the “materially adverse” standard requires that “the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from [engaging in protected activity].”Id. at 68. The “reasonable worker” standard is an objective, rather than subjective, measure of harm. Id. at 68-69. The “materially adverse” standard is further intended to “separate significant from trivial harms.” Id. at 68. “An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.” Ibid. Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 27 of 33 PageID: 610 23 Here, Plaintiff complains of two (2) write-ups he received for an ADA violation on August 24, 2014, and for failing to pick up passengers on September 26, 2014, neither of which resulted in any disciplinary action taken against him. (SOUMF ¶¶84-85, 91-93, 95). Plaintiff also complains that he was sent a letter from a supervisor to attend a customer complaints class in September of 2014 after a passenger filed a customer complaint against him. (SOUMF ¶96). Plaintiff testified, however, that he told his supervisor he would not attend the class, and did not actually attend it. (SOUMF ¶100). Based on Plaintiff’s own admissions, no reasonable juror could find that a material adverse action was taken against Plaintiff for the two write-ups that resulted in no action taken against him, or for being advised to take a customer complaints class he did not end up attending without any adverse consequences. In addition, Plaintiff is also unable to show any causal connection between his protected activity (his March 2013 EEOC Charge of Discrimination or his July 2014 Complaint) and the August 24, 2014 and September 26, 2014 write-ups, or the September 2014 notice to attend a customer complaints class. The August 24, 2014 ADA violation write-up was issued after a mechanic who was called to fix the wheel-chair lift on his bus reported that the wheel-chair lift malfunction was due to Plaintiff’s own “error” of parking the bus too close to the curb. (SOUMF ¶85). Plaintiff does not know who the mechanic who reported Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 28 of 33 PageID: 611 24 him is, and only speculates that it is possible the mechanic knew that he had filed a lawsuit against NJT. (SOUMF ¶¶89-90). Neither Plaintiff’s March 15, 2013 Charge of Discrimination or July 21, 2014 Complaint implicate any wrongdoing by any mechanic. (SOUMF ¶¶1, 6) With respect to the September 26, 2014 write-up for failing to pick up passenger, the record shows that Regional Supervisor Dave Mercogliano reported Plaintiff for this violation. (SOUMF¶92). Plaintiff testified that he is not aware of whether Mercogliano knows about his lawsuit against NJT, and neither his Charge of Discrimination nor his original Complaint implicate Mercogliano of any wrongdoing. ((SOUMF ¶¶1, 6, 94). Finally, with respect to the customer complaint class he was asked to take in September of 2014, Plaintiff admits that this was initiated by a passenger’s complaint against him. (SOUMF ¶¶96, 99). Finally Plaintiff cannot meet his burden to rebut Defendant’s legitimate rationale for issuing the Plaintiff write-ups on August 24 and September 26, 2014, or the letter requesting that he attend a customer complaints class on October 8, 2014. The employer’s burden to advance a legitimate, non-retaliatory reason for its conduct under the McDonnell-Douglas burden-shifting analysis is “relatively light” and is satisfied “by introducing evidence which, taken as true, would permit Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 29 of 33 PageID: 612 25 the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994) (citation omitted). “The employer need not prove that the tendered reason actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff.” Ibid. Therefore, to rebut the employer’s evidence, “the plaintiff cannot simply show that the employer's decision was wrong or mistaken,” but must show that the employer’s proffered legitimate reasons contain “such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions” as to be “unworthy of credence.” Id. at 765 (3d Cir. 1994) (citations omitted). "Proof of discriminatory motive is critical." Int'l Bhd. of Teamsters, supra., 431 U.S. at 335 n. 15 (1977). Here, NJT’s legitimate business reasons for its actions in 2014 that Plaintiff alleges to be retaliatory are clear. Based on NJT’s guidelines for Bus Operators to assist disabled passengers, it is not out of the ordinary that Plaintiff would receive a write-up for a defective wheel-chair lift that a mechanic reported to have been caused by Plaintiff’s error. (SOUMF ¶¶85-86). Plaintiff offers no evidence that a write-up issued per these guidelines is a pretext for retaliation other than testifying that he believes the issue was not his fault. (See Trasi Cert., Exhibit I, Transcript of Plaintiff’s Deposition dated January 12, 2017 at Tr. 166:8-14). Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 30 of 33 PageID: 613 26 Similarly, given that NJT’s Guidelines for Bus Operators requires its Bus Operators to maintain cordial relations with customers, it is perfectly legitimate for NJT to issue a write-up for Plaintiff based on a Regional Supervisor’s report that he improperly failed to pick up passengers (SOUMF ¶92), and request that he attend a customer complaint class when a passenger files a complaint against him (SOUMF ¶¶96, 99). Once again Plaintiff offers no evidence that his September 26, 2014 write-up for failing to pick up passengers, or the letter he allegedly received in September of 2014 to attend a customer complaints class, were pretext for retaliation. With respect to the September 26, 2014 write-up, Plaintiff testified that Mercoglio reported him after telling Plaintiff not to pick those passengers up in order to cover up for his own mistake. (SOUMF ¶93). While such an action, if true, can be considered deceitful, it does not evince any retaliatory motive related to Plaintiff filing his March 15, 2013 EEOC Charge of Discrimination or July 21, 2014 Complaint. With respect to the letter from his supervisor requesting he take a customer complaints class, Plaintiff argues that his supervisor should have believed his side of the story over the passenger’s and therefore not sent him to the class. (SOUMF ¶99). Essentially, Plaintiff is expressing disagreement with his supervisor’s decision, which is not sufficient to provide proof of a retaliatory motive. Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 31 of 33 PageID: 614 27 For the forgoing reasons, Plaintiff cannot establish that NJT’s actions taken against him in 2014 that he did not assert in his First Amended Complaint, testified about at his deposition, constitute retaliation under Title VII. POINT IV PLAINTIFF IS NOT ENTITLED TO PUNITIVE DAMAGES In the Civil Rights Act of 1991, Congress authorized punitive damages under Title VII only if the plaintiff "demonstrates that the [defendant] engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1). “In order to recover punitive damages, the plaintiff must prove that the defendant's conduct was wantonly reckless or malicious.” Domm v. Jersey Printing Co., 871 F.Supp. 732, 739 (D.N.J. 1994)(citation omitted). In the instant matter, even if Plaintiff’s allegations are accepted as true, they do not establish the type of wanton, reckless or malicious conduct that would justify punitive damages. Accordingly, this claim should be dismissed. CONCLUSION Based on the foregoing, Defendant respectfully requests that summary judgment be granted to it and that Plaintiff’s Complaint be dismissed with prejudice. Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 32 of 33 PageID: 615 28 Respectfully Submitted, CHRISTOPHER S. PORRINO ATTORNEY GENERAL OF NEW JERSEY By: Ashwath S. Trasi Deputy Attorney General DATED: January 27, 2017 Case 2:14-cv-04565-MCA-LDW Document 48-1 Filed 01/28/17 Page 33 of 33 PageID: 616