-JAD JOHN DOE v. SIZEWISE RENTALS, LLC et al, No. 2:2009cv03409 - Document 129 (D.N.J. 2012)

Court Description: OPINION. Signed by Judge Claire C. Cecchi on 4/10/2012. (nr, )

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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JOHN DOE, Plaintiff, Civil Action No, 09-3409 v. OPINION SIZEWISE RENTALS, LLC, et a!., Defendants. CECCHI, District Judge. I. INTRODUCTION This matter comes before the Court by Motion for Summary Judgment brought by Defendants Sizewise Rentals, LLC ( Sizewise ) and Joyce Skiar ( Sklar ) (collectively Defendants ) against Plaintiff John Doe ( Plaintiff or Doe ) pursuant to Federal Rule of Civil Procedure 56. Defendants have also moved to vacate this Court s Order permitting Doe and John Doe-i ( Doe-i ) (collectively, Plaintiffs ) to proceed using pseudonyms. Plaintiff has cross-moved to reinstate Doe-i s claims of racial discrimination and to strike Defendants documents that disclosed Plaintiffs real names. The Court has considered the submissions made in support of and in opposition to the instant motion. No oral argument was heard, Fed. R. Civ. 2 Pro se plaintiff John Doe attempts to argue on behalf of pro se plaintiff John Doe-i, who was previously dismissed from this action. In an Order dated November 22, 2010, this Court dismissed all claims made by Doe-i and dismissed all claims by Doe against all defendants except a claim for retaliatory discharge under 42 U.S.C. § 1981 against Sizewise and Sklar. As discussed, supra Section IV.C, a pro se Plaintiff has no authority to represent another person. The 2 Court considers any new arguments not presented by the parties to be waived. See Brenner v Local 514 United Bhd of Carpenters & Joiners, 927 F 2d 1283, 1298 (3d Cir 1991) ( It is well established that failure to raise an issue in the district court constitutes a waiver of the argument. ). P. 78. Based on the reasons that follow, Defendants Motion for Summary Judgment is granted and the Court will vacate the Order permitting Plaintiffs to proceed using pseudonyms. Plaintiff s motion to reinstate Doe-I s claims and to strike documents that reveal Plaintiffs real names is denied. II. BACKGROUND AND PROCEDURAL HISTORY 3 Sizewise is a company that delivers medical equipment to be used by overweight patients in hospitals and nursing homes. (Defendants Statement of Undisputed Material Facts ( SOF ) 1; Second Amended Complaint ( SAC ) ¶ 2.) ¶ Doe is an Egyptian Muslim who worked at the Sizewise facility in Hackensack, New Jersey from June 16, 2008 until he was terminated in July 2009. (SOF ¶J1, 2; SAC ¶ 12.) As an Account Associate for Sizewise, Doe inspected equipment, drove and delivered the equipment to customers, and demonstrated to the customers Defendants submitted a statement of undisputed material facts ( SOF ) along with their motion. Plaintiff has submitted a statement of disputed material facts, wherein he lists factual allegations, but does not cite to any supporting documents or evidence. Plaintiff claims that [D]efendants have deliberately skipped pages 9, 14-16, 22, 34, 26, 27, 31, 32, 40, 42 from Plaintiff s Deposition which comprise a continuation of the disputed facts between the two parties. (P1. Opp. at 8.) However, Plaintiff did not submit these pages of the deposition for the Court s review. Doe s burden as the non-moving party in a motion for summary judgment requires more than just bare assertions, conclusory allegations or suspicions. Podobnik v. U .S. Postal Serv 409 F.3d 584, 594 (3d Cir, 2005), The Supreme Court has unequivocally stated that the object of Rule 56(e) is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit. Khrakovskiy v. Denise, Civ. A. No. 06 1033, 2009 U.S. Dist. LEXIS 96650, at *26 (D.N.J. Oct. 19, 2009) (quoting Lujan v. Nat l Wildlife Fed n, 497 U.S. 871, 888 (1990)). The Third Amended Complaint ( TAC ) is the operative pleading in this matter, however, in an effort to liberally construe the pro se Plaintiff s allegations, the Court will review the allegations contained in Plaintiff s Second and Third Amended Complaints. ($eç Letter Opinion of Judge Linares, Jan. 14, 2011, ECF Docket No. 100, at 2.) 7 how the equipment worked, (SOF ¶ 2; SAC ¶ 12.) Amy Sztejman ( Sztejman ) was a District Sales Representative at Sizewise during the relevant time period. (Hill Cert., Ex. C.) Skiar was a Regional Manager for Sizewise at the Hackensack facility during the relevant time. (Sklar Cert. ¶ 1; SOF ¶ 4.) Sklar interviewed Doe for his position and recommended that Sizewise hire him. (Skiar Cert. ¶ 1; SOF ¶ 4.) Doe began working at Sizewise in June 2008 and on October 22, 2008, Doe signed a form acknowledging his receipt of the employee handbook and policy. (Hill Cert., Ex. J.) According to Doe, soon after he began working at Sizewise, Skiar spoke to him about assuming additional responsibilities and potentially taking on a management position. (SOF ( Pl. s SOF ) ¶ 4) ¶J 10-15; see also Plaintiffs Statement of Disputed Material Facts However, he told Skiar that he needed time to think about it because he had other commitments and needed more time to learn the job. (SOF ¶ 10-15.) In August 2008, Doe received a written warning as a result of an altercation he had with two other employees. (Hill Cert., Ex. C.) According to Doe, both of these other employees were terminated following his complaints about them to human resources and to Skiar. (SOF ¶ 6-7; SAC ¶ 15, 17.) In November 2008, Doe-i, who is a Muslim from Turkey, began working at Sizewise after Doe recommended him for a job. (SOF ¶ 17; SAC ¶ 12.) Doe was assigned the task of training Doe-i, but Doe claimed that he did not have time to sufficiently train Doe-i. (SOF ¶ 20.) Early in Doe-i s employment, Doe told Sklar that Doe-i was not performing as well as he had expected. According to Doe, Doe-i was frustrated with having to work the night shift because it was a lot of work and he did not want to work at night. (SOF ¶ 21.) In the first six months that Doe-i worked at Sizewise, he was involved in four accidents while driving a Sizewise vehicle. (SOF ¶ 22; Hill Cert., Ex. F.) According to Sizewise s termination report, Doe-i was terminated on April 29, 2009 as a result of these accidents. (SOF ¶ 20; Hill Cert., Ex. 3 F.) The decision to terminate Doe-i s employment was made at the corporate level, not by Sklar, Meyer, or Sztejrnan. (SOF ¶ 24; Guthrie Cert. ¶ 2.) Cord Meyer ( Meyer ) was hired as the Regional Operations Manager for Sizewise in February 2009. (Meyer Cert. ¶J 1-2.) In June 2009, Meyer requested that Doe complete a self- evaluation form in preparation for his performance review, When Doe failed to return the form, Meyer followed up with him on two occasions, but Doe told him that he was going to speak with Skiar before returning the form. (SOF ¶ 25; Meyer Cert. ¶2; Hill Cert., Ex. G.) On approximately June 21, 2009, Doe called Skiar and accused her of terminating Doe-i because he is Muslim and Sklar is Jewish. (SOF ¶ 27.) During that conversation, he probably told her that he thought Meyer was Jewish as well. (SOF lawsuit if Skiar did not resign from Sizewise. (SOF ¶ 28.) ¶ 29.) Doe also threatened to bring a After receiving the call from Doe, Skiar e-mailed her manager, Tim McCarty, and told him that Doe had called her on Friday June 19, 2009 and June 21, 2009 and alleged that he was discriminated against because he is a Muslim. (SOF ¶ 31; Hill Cert., Ex. H.) On June 27, 2009, Doe sent an e-mail to Sklar, accusing her of using a fabricated story to fire Doe-i. (SOF ¶ 32; Hill Cert., Ex. I.) He stated in the e-mail that Skiar and Sztejman are Jewish. [Doe-li is Muslim. You have a lot to explain. (SOF ¶ 32; Hill Cert., Ex. I.) In response to Doe s accusations of discrimination, Larry Askew, General Counsel for Sizewise, conducted an investigation of Doe s claims. (SOF ¶j 36-3 7; Askew Cert. ¶J 1-2.) Askew met with Doe on June 29, 2009, and Doe told Askew that Sztejman wanted to fire Doe-i because he is Muslim. (SOF ¶ 37; Askew Cert., Ex. A.) He further told Askew that Sklar teamed up with Sztejman to fire Doe-i because they are Jewish. (SOF 4 ¶ 37; Askew Cert., Ex. nce or A.) Doe also told Askew that he hated taking direction from someone with less experie less education than himself. (SOF ¶ 38.) On July 2, 2009, a Sizewise customer, Arbor Glen Nursing Home ( Arbor Glen ) faxed a and letter to inform [Sizewise] of a situation that took place between a Sizewise delivery man one of [the customer s] employees on July 1, 2009. (SOF ¶ 41; Guthrie Cert., Ex. A.) The and letter identified Doe directly and stated that he looked the customer s employee up and down stared at her breasts. (SOF ¶ 42; Guthrie Cert., Ex. A.) The letter alleged that Doe asked the ted that employee to stand up and turn around so he could look at her and the customer reques Doe not be placed on their delivery route in the future. (SOF ¶ 42; Guthrie Cert., Ex. A.) At his er and he deposition, Doe testified that he did not remember delivering equipment to this custom denies that he committed the misconduct about which the customer complained. (SOF ¶ 44.) service ticket indicates that Doe made a delivery to the customer on July 1, 2009. (SOF Hill Cert., Ex. K.) Sizewise terminated Doe s employment on July 7, 2009. (SOF A ¶ 44; ¶ 45.) was Sizewise asserts the termination was a result of Doe s alleged misconduct, which sion complained of by the customer. (SOF 45; Hill Cert., Ex. L.) Doe argues that Skiar s obses the with the destruction of non-Jews was a motivating factor in his termination and termination of Doe-i. (SOF ¶ 46.) Plaintiff filed this cause of action in July 2009, asserting various claims of employment discrimination under Title VII, 42 U.S.C. § 2000e-i et seq., and 42 U.S.C. 1986 against Sizewise, Sklar, Sztejman, and Meyer. § 1981, 1985, and On August 2, 2010, this Court granted t Entry Plaintiffs request to proceed anonymously in this case. (Order, Aug. 3, 2010, ECF Docke was No, 65.) Defendants filed a motion to dismiss the Second Amended Complaint, which granted by this Court on September 7, 2010. (Letter Opinion, Sept. 7, 2010, ECF Docket Entry No. 78.) Plaintiff filed a Third Amended Complaint on September 13, 2010. On November 22, 2010, Defendants moved to dismiss the Third Amended Complaint and this Court granted that motion in part and denied it in part. The Court found that read together, the Second and Third Amended Complaints allege that Sizewise terminated Doe s employment afier he complained to Skiar that John Doe-i s termination had been fueled by racial animus. (Letter Opinion, Nov. 22, 2011, ECF Docket Entry No. 91, at 9.) Plaintiff then filed a motion for reconsideration, which was denied on January 14, 2011. This Court s letter opinion stated that the lawsuit was to proceed solely as to Plaintiff John Doe s section 1981 claim of retaliation as against Defendants Sizewise Rentals, LLC and Joyce Sklar. (Letter Opinion, Jan. 14, 2011, ECF Docket No. 100, at 8.) Sizewise and Skiar have filed the instant motion for Summary Judgment to vacate the order permitting Plaintiffs to use a pseudonym. III. LEGAL STANDARD Summary judgment is appropriate if the depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials demonstrate that there is no genuine issue as to any material fact, and, construing all facts and inferences in a light most favorable to the non-moving party, the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. p. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Pollock v. Am. Tel. & Tel, Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The moving party has the initial burden of proving the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. Once the moving party meets this burden, the non 6 to show that, to the contrary, there moving party has the burden of identifying specific facts Elec, Indus. Co. v. Zenith Radio exists a genuine issue of material fact for trial. $e Matsushita if a dispute about that fact might Corp., 475 U.S. 574, 586 87 (1986). A fact is material law, and a genuine issue exists as affect the outcome of the suit under governing [substantive] jury could return a verdict for the to that fact if the evidence is such that a reasonable 242, 248 (1986). The Court s nonmoving party. Anderson v. Liberty Lobby. Inc., 477 U.S. not to weigh the evidence and role is to determine whether there is a genuine issue for trial, decide the truth of the matter. Id. at 249. IV. DISCUSSION this lawsuit proceeds Pursuant to this Court s letter opinion dated January 14, 2011, retaliation as against Defendants solely as to Plaintiff John Doe s section 1981 claim of 14, 2011, at 8.) Defendants have Sizewise Rentals, LLC and Joyce Sklar. (Letter Opinion, Jan. permitting Plaintiffs to proceed moved for summary judgment and to vacate this Court s Order s claims of racial discrimination using pseudonyms. Plaintiff has moved to reinstate John Doe-i for summary judgment that and to strike Defendants documents submitted with their motion address Defendants motion to disclosed Doe s and Doe 1 s real names. The Court will first vacate the Order permitting Plaintiffs to use pseudonyms. ffs to Use Pseudonyms A. Defendants Motion to Vacate Order Permitting Plainti See Doe v. C.A.R.S. Courts allow parties to proceed anonymously in exceptional cases. order to proceed with a lawsuit Protection Plus, Inc.. 527 F.3d 358, 371 n. 2 (3d Cir. 2008). In harm, and (2) that the fear of using a pseudonym, a plaintiff must show both (1) a fear of severe (3d Cir. 2011) (quoting Doe v. severe harm is reasonable. Doe v. Megless, 654 F.3d 404, 408 1043 (9th Cir. 2010)). The risk Kamehameha Sch./Bernice Pauahi Bishop Estate, 596 F.3d 1036, 7 that the plaintiff may suffer embarrassment or economic harm is not enough to require a pseudonym. Id. Courts have allowed pseudonyms in cases involving abortion, birth control, transexuality, mental illness, welfare rights of illegitimate children, AIDS, and homosexuality. Doe v, Borough of Morrisville, 130 F,R,D, 612, 614 (E.D.Pa. 1990). In this case, Doe testified at his deposition that he used a pseudonym when filing his complaint because he thought it was necessary if he were to proceed with a class action, not because he feared having his identity revealed. (SOF 4 ¶ 47; Hill Cert., Ex. A, at 35-36.) When asked at his deposition if he was ever concerned about having [his) identity concealed so that no one knows that it is [him] that has filed the lawsuit, Doe stated, No. to be honest with you, no. I don t know exactly, but the answer is no. (Hill Cert., Ex. A, at 35-36.) Although Plaintiff asserts in his opposition that he was terminated with malicious intent and risked severe harm, his deposition testimony and submissions do not support the use of a pseudonym. (P1. Opp. 4.) The Court finds that Plaintiff s contentions do not rise to the level of a fear of severe harm. Therefore, Defendants motion to vacate the Court s Order permitting Plaintiffs to proceed anonymously, dated August 2, 2010, is granted. B. Defendants Motion for Summary Judgment 1. Section 1981 Retaliation Claim Defendants argue that this Court should dismiss Doe s Section 1981 retaliation claim because he is attempting to state a claim based on alleged religious discrimination against Muslims. when the statute bars racial, not religious, discrimination. Abulkhar v. Liberty Mut. Ins. Co., 2009 WL 5206285 (D.N.J. 2009) (Def. s Mem, in Supp. Mot, Dismiss 15,). Court issued the Order permitting Doe and Doe-i to use pseudonyms on August 2, 2010, prior to Doe s deposition, which took place on July 6, 2011. 8 42 U.S.C. §1981 provides: All persons within the jurisdiction of the United States shall have the same be right in every State and Territory to make and enforce contracts, to sue, parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42. U.S.C. § 1981. To establish a prima facie case for retaliation under § 1981, a plaintiff must show by a suffered an preponderance of the evidence (1) that he engaged in a protected activity; (2) that he n the protected adverse employment action; and (3) that there was a causal connection betwee e, Inc., 197 activity and the adverse employment action. Hutchins v. United Parcel Servic 263 (3d Cir. Fed,Appx. 152, 156 (3d Cir. 2006) (quoting Cardenas v. Massey, 269 F.3d 251, ate, non 2001)). The employer can rebut the employee s prima facie case by asserting a legitim 497, 501 discriminatory reason for the employment action. Quiroga v. Hasbro, Inc., 934 F.2d derance of the (3d Cir. 1991). The burden then shifts back to the plaintiff to show by a prepon ination. See evidence that the reasons offered by the employer are merely a pretext for discrim Waddell v. Small Tube Prod. Inc., 799 F.2d 69, 73 (3d Cir. 1986). In order to state a claim for retaliation under to discrimination prohibited by § 1981, the protected activity must relate § 1981, not just under any statute. See CBOCS West, Inc. v, F.3d 684, 693 pjes, 553 U.S. 442, 451-52 (2008); Hawkins v. 1115 Legal Serv, Care, 163 (2d Cir. 1998) ( [Tjo be actionable under § 1981, the retaliation must have been in response to the claimant s assertion of rights that were protected by § 1981. ). Section 1981 prohibits Francis discrimination based only on race, alienage, ancestry, or ethnic characteristics. See Saint protect from Coll. v. A1-Khazraji, 481 U.S. 604, 613 (1987) ( Congress intended to 9 onal discrimination discrimination identifiable classes of persons who are subjected to intenti solely because of their ancestry or ethnic characteristics. ). Section 1981 does not prohibit v. Bethlehem Steel Corp., discrimination on the basis of religion, sex, or national origin. Vuksta 540 F. Supp. 1276, 1281-82 (E.D. Pa. 1982) (holding that § 1981 does not prohibit v. Allegheny School, discrimination on the basis of religion, sex, or national origin); Abdallah *5 (ED. Pa. 2011) (dismissing Section 1981 claim because it No. 10-5054, 2011 WL 344079, at on that his Islamic was based on religious, not ethnic discrimination despite plaintiffs asserti faith was part of his ethnic characteristics and ancestry). Here, Doe has failed to allege that he engaged in an activity protected by § 1981. Doe gave preferential claims that Defendants engaged in racial discrimination and that Skiar treatment to white employees. (Plaintiffs Statement of Disputed Facts ¶ 1; TAC ¶J E-J.) se, asserting that he was However, the undisputed facts show that Doe complained to Sizewi devoid of any factual discriminated against because he is Muslim. Furthermore, the record is characteristics or allegations establishing discrimination based on Plaintiffs race, ethnic of terminating John ancestry. During the June 21, 2009 phone call with Skiar, Doe accused her Doe-i because he s Muslim and you are Jewish. (SOF ¶ 27.) Upon receiving the call from called her on Friday Doe, Skiar e-mailed her manager, Tim McCarty, and told him that Doe had t because he is a June 19, 2009 and June 21, 2009 and alleged that he was discriminated agains Muslim. (SOF ¶ 31; Hill Cert., Ex. H.) He stated in a June 27, 2009 e-mail that Skiar and (SOF Sztejman are Jewish, [Doe-i] is Muslim. You have a lot to explain. Ex. I.) ¶ 32; Hill Cert., e they are Doe further told Larry Askew that Sztejman and Skiar fired Doe-i becaus Jewish. (SOF ¶ 37; Askew Cert., Ex. A.) Doe also believed that Skiar treated Meyer more 10 5 s Mr. Meyer to be Jewish. favorably because she favored Jewish people and Plaintiff believe (SOF ¶ 28.) she was Jewish Doe also alleged that Sklar was antagonistic toward him because (SOF and he believed if she were his boss she would stab [him] in the back. ¶ 16.) According and this was a motivating to Doe, Skiar had an obsession with the destruction of non-Jews factor in his termination and Doe-I s termination. (SOF ¶ 46.) Sklar also understood Plaintiff (SOF to claim that he was discriminated against because he is a Muslim. ¶ 31; Hill Cert., Ex. H.) religious practices ever Doe has argued that [n]owhere, in Plaintiffs Complaints, [have] asserts that Defendants failed been asserted. (Plaintiff s Opposition BriefJ 3.) Furthermore, he h naturalized citizen[] and to address the fact that Plaintiffs were an Arab Egyptian and a Turkis when asked what his race is, all [D]efendants were Jewish Americans. (Id.) At his Deposition, that Stzejman and Skiar are Doe responded Arabic. (Hill Cert., Ex. A, at 21.) He also stated Jewish and were antagonistic to Arabs and Muslims. (RI.) He also discussed conflicts asserted that a motivating between Jews and Arabs. (Id. Ex. A, at 21-22, 25.) He further tion of non-Jews. (Id. factor in his termination was Skiar s alleged obsession with the destruc Ex. A, at 29.) Doe also said he believed that Judaism is a race. (Id.) that his complaints Based on these facts, the Court does not accept Doe s argument ination. addressed to Sizewise were based on racial or ethnic discrim In his complaint to and Doe-i because they are Sizewise, Doe only alleged that Sklar discriminated against him of religious discrimination, which Muslim and she is Jewish. Therefore, his complaint was one 1981. does not fall within the scope of protected activity under Section Meyer is not Jewish, however. (Meyer Cert, ¶ 3.) 11 under Section 1981, Doe s Even assuming that Doe s complaints to Sizewise do fall required for a section 1981 retaliation claims fail under further analysis. Under the second prong se on July 7, 2009. Under the third claim, it is undisputed that Doe was terminated from Sizewi derance of the evidence, a causal prong, however, Doe has failed to establish by a prepon termination from Sizewise. Doe connection between his complaints of discrimination and his ated approximately one week asserts that there is a temporal connection because he was termin after he complained of discrimination. (P1. Opp. 6.) However, he has not submitted any Skiar immediately contacted her evidence that Sizewise responded negatively to his complaint. June 27, 2009 e-mail, Sizewise supervisor following Doe s June 21, 2009 call. Following Doe s with Doe two days later on began investigating his complaints, sending Larry Askew to meet tion that Sizewise did not tell him June 29, 2009. Furthermore, Doe testified during his deposi (Hill Cert., Ex. A, at 41.) they were terminating him because of the complaints he made. after [the protected activity] [T]he mere fact that [an] adverse employment action occurs of demonstrating a causal link will ordinarily be insufficient to satisfy the plaintiffs burden 494, 503 (3d Cir. 1997) (quoting between the two. Krouse v. Am. Sterilizer Co., 126 F.3d ; see also Malloy v. Intercall, Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997)) *20 (D.N.J. Dec. 28, 2010) (granting defendant s Inc., No. 08-1182, 2010 WL 5441658, at to the fact that she complained motion for summary judgment where plaintiff merely point[ed] and was terminated approximately two weeks later ). Thus, [o]nly where the facts of the may temporal proximity, on its particular case are so unusually suggestive of retaliatory motive If temporal proximity is not own, support an inference of causation. Krouse, 126 F.3d at 503. sh a causal link, unusually suggestive, a plaintiff must use other evidence to establi Planters Lifesavers Co., 206 F.3d 271, 279-81 (3d Cir. 2000). 12 Farrell v. termination is not Here, given all the surrounding circumstances, the timing of the fact that Doe s termination unusually suggestive of a retaliatory motive. Other than the aint, there are no facts to occurred about a week after Sizewise began investigating his compl the Court finds that Doe has suggest that the termination was related to his complaint. Therefore, failed to make a prima facie case of retaliation under Section 1981. ion, Sizewise has Even assuming that Doe could make a prima facie case of retaliat Doe s employment. Sizewise asserted a legitimate, non-discriminatory reason for terminating complained of Doe s misconduct claims that it terminated Doe s employment after a customer during a delivery to a Sizewise customer on July 1, 2009. (Def. Br. 20.) In fact, Sizewise a Sizewise delivery person had received a fax from its customer, Arbor Glen, complaining that made inappropriate remarks to one of its female employees. ¶f (SOF 4 1-42.) While Doe the letter from Arbor Glen testified that he did not remember making a delivery to Arbor Glen, Moreover, the service ticket directly identifies Doe as the delivery person who was at fault. (SOF indicates that Doe made a delivery to Arbor Glen on July 1, 2009. ¶ 44.) Doe asserts that however, he offers no proof Sizewise fabricated the evidence regarding Arbor Glen s complaint, Pl. s SOF to support this argument, (Def. Br. 20; Hill Cert., Ex. A, at 39; ¶ 10.) The Court finds discrimination. $çç Connolly v. that this speculation is not enough to establish a pretext for *4 (D.N.J. 2009) (granting defendant s Mitsui O.S.K. Lines, No. 04-5 127, 2009 WL 3055378, at motion for summary judgment because plaintiff s speculation demonstrate pretext ). * . . [was) not sufficient to ff Defendants are, therefore, entitled to summary judgment on Plainti John Doe s claim for Section 1981 retaliation. 13 2. Sklar s Individual Liability Plaintiff has asserted that Skiar is individually liable for retaliation under Section 198 1. The Third Circuit has found that individuals who are personally involved in the discrimination against a plaintiff may be held liable under Section 1981. Al- Khazraji v. Saint Francis College, 784 F.2d 505, 518 (3d Cir. 1986); see also Santiago v. City of Vineland, 107 F. Supp. 2d 512, 541-42 (D.N.J. 2000) (holding individual defendants liable under Section 1981 because they were involved in the plaintiff s discharge). Defendants assert, as does Skiar in her certification, that she did not make the decision to terminate Doe s employment. (Def. Br. 22; Sklar Cert. ¶ 2.) Sizewise claims that Tim McCarty, Sizewise s national Sales manager made the decision to terminate Doe upon receiving the complaint from Arbor Glen. (Def. Br. 22; Guthrie Cert. ¶ 5.) Plaintiff claims that Sklar engaged in interviewing candidates for employment, acted as supervisor, recommended termination, and allegedly terminated all minority workers from employments [sic] prior to hiring Plaintiff John Doe. (P1. Opp. 6.) While Skiar did interview candidates and recommend hiring, (See SOF ¶ 4), Plaintiff has not pointed to any evidence on the record in support of the claim that Sklar made the decision to terminate Doe. Therefore, the Court grants Defendants motion for summary judgment on Plaintiff s claims against Sklar. C. Plaintiff s Cross-Motion Discrimination to Reinstate John Doe-i s Claim of Racial Plaintiff has asked this Court to reinstate Doe-l s claims against Sizewise and Skiar because [D]efendants have obstructed discovery for twenty four (24) months, where such botched discovery concealed the fabricated evidence of terminating John Doe-i Pl, s SOF ¶ . (P1, Opp. 9; 11.) Plaintiff also alleges that Meyer had a part in causing the alleged accidents attributed to John Doe-I and that Sklar conspired in terminating minority workers with 14 falsified evidence. (P1. Opp. 9; see also Pl. s SOF ¶ 5) In their Reply, Defendants argue that they have provided Plaintiff with all relevant documents regarding termination. (Def. Reply Br. 5.) Furthermore, in Judge Linares s Letter Opinion dated November 22, 2010, this Court considered Doe-i s claims and dismissed them with prejudice. The Court also considered and denied Plaintiff s motion for reconsideration regarding those claims, as discussed in a Letter Opinion dated January 14, 2011. The Court also notes that to the extent that Doe is attempting to represent Doe-i in any respect on the pending motions, he is not empowered to do so. Huertas v. Certified Credit & Collection Bureau, No. 08-1996 2008, WL 2165181, at *i.2 (D.N.J. 2008); McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966) (stating that a pro se plaintiff has no author ity to appear as an attorney for others than himself ); Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000) ( A litigant may bring [his] own claims to federal court withou t counsel, but not the claims of others. ). Therefore, the Court finds that there is no basis to reinstate Doe-i s claims against Defendants. D. Plaintiff s Cross-Motion to Strike Defendants Documents That Disclose Plaintiffs Real Names Plaintiff has also requested that this Court strike documents submitted by Defendants that disclose Plaintiffs real names. Pursuant to this Opinion, the Order permitting Plaintiffs to proceed anonymously has been vacated. Therefore, this request is moot. V. CONCLUSION For the reasons set forth above, Defendants Motion for Summary Judgment is granted and the Court will vacate the Order permitting Plaintiffs to proceed using pseudo nyms. Plaintiff s motion to reinstate Doe-I s claims and to strike documents that reveal Plaintiffs real 15 names is denied. An appropriate Order follows. CLAIRE C. CECCHI, U,S.D.J. DATED: April 10, 2012 16

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