COLEMAN v. DELANEY'S CAPE MAY, LLC., No. 1:2017cv02581 - Document 32 (D.N.J. 2019)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 11/17/2019. (dmr)
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COLEMAN v. DELANEY&#039;S CAPE MAY, LLC. Doc. 32 U N ITED S TATES D ISTRICT COU RT D ISTRICT OF N EW JERSEY J U STIN COLEMAN , Pla in tiff, v. D ELAN EYS’ CAPE MAY, LLC D e fe n d an ts . : : : : : : : : : : H o n . Jo s e p h H . Ro d rigu e z Civil N o . 17-2 5 8 1 OPIN ION This m atter com es before the Court on Motion for Sum m ary J udgm ent of Defendant Miquon, Inc. who is the owner and operator of Delaney’s restaurant in Cape May, New J ersey. Plaintiff J ustin Colem an was a seasonal em ployee at Delaney’s during part of the Sum m er in 20 15. Colem an worked as both a server and a bartender during the weeks between J uly 15, 20 15 and Septem ber 21, 20 15. As is its alleged custom , Delaney’s term inated 55 em ployees, including Colem an, at the end of the Sum m er season in 20 15. Colem an, who is African-Am erican, claim s his term ination was m otivated by racial anim us an d he asserts several claim s under the New J ersey Law Against Discrim ination (“NJ LAD”), N.J .S.A. 10 :5-1, et seq. and Title VII of the United States Code, 42 U.S.C. § 20 0 0 e-3. Specifically, Colem an alleges (1) that he was term inated solely because of his race, (2) that he was the subject of disparate treatm ent at Delaney’s, (3) that he was subjected to a racially offensive and hostile work environm ent, and (4) that he was term inated in retaliation for havin g com plained about racially offensive conduct at the restaurant. Defendant Miquon m oves for sum m ary 1 Dockets.Justia.com judgm ent as to all of Colem an’s claim s. The Court has considered the written subm issions of the parties as well as the argum ents advanced at the hearing on April 16, 20 19. For the reasons expressed on the record that day, as well as those set forth below, Defendant Miquon’s m otion is granted. I. Backgro u n d Miquon hired Colem an as a part-tim e, seasonal em ployee at Delaney’s on J uly 15, 20 15. (Slawek Decl. ¶ 9). In term s of seniority, Colem an was one of the last staff m em bers brought on at Delaney’s for the 20 15 sum m er season; join ing the team in m idSum m er, he was last on the seniority scale. (Id.) Colem an claim s that he was hired as a bartender, but was quickly replaced with non-African Am erican bartenders. SOF at ¶ 35. Miquon agrees that Colem an was shifted away from the bar and into a server position, a transition Colem an agreed to m ake. According to Miquon, the m anager at the restaurant decided to expand the num ber of bartenders on a single shift from two to three bartenders when Colem an was hired. (Slawek Decl. ¶ 12.) That staffing m odel proved unnecessary because of slow business and a change was m ade to the num ber of bartenders staffed on a single shift. (Id. at ¶ 13.) Under this new staffing m odel, Colem an was re-purposed and agreed to work as a server; he often received the m ost lucrative assignm ent station on the floor and his com pensation was not im pacted by his change of duties. (Slawek Decl. ¶ 13.) During Colem an’s eleven-week tenure, he worked part-tim e, approxim ately two to four days per week between Wednesday an d Saturday. (Slawek Decl. ¶ 14.) Miquon states that Colem an had som e perform ance problem s, but his work was satisfactory and, 2 while he was spoken to about som e issues, he was never written up for any m issteps. (Id. at ¶¶ 15- 16.) According to Colem an, he endured a hostile work environm ent in which m any Delaney’s em ployees frequently hurled racial epithets when referrin g to custom ers and to each other. Although Colem an him self was never referred to in a racially insensitive m anner, his presence during the use of racially charged and inappropriate com m ents and banter caused him undue stress. Colem an sets forth the following litany of events in his brief in opposition, which captures the allegations m ade during his deposition: -Co-Worker Tracy Venturini com m ented to Mr. Colem an, “What are you doing here? They don’t hire black bartenders. The last one didn’t work out. This is an Irish pub.” SOF at ¶ 25 (Colem an Dep. Tr., Ex. H at 37:2238 :14); -Caucasian co-workers, including Tracy Venturini, Eric Bednar, and Vadim Bondarenko used the phrases, “don’t m ake m e get Black on you”, “yo nigga”, and “m y nigga” in Mr. Colem an’s presence. SOF at ¶ 26; -Caucasian co-workers, and Mr. Colem an’s im m ediate supervisor Ed Nielsen referred to African Am ericans as “They” and “You People”. SOF at ¶ 27; -When rap or hip-hop m usic was played on the jukebox, Mr. Nielsen would turn it off or turn it down and scold Mr. Colem an an d other staff, telling them , “Don’t play that type of m usic. No black m usic.” SOF at ¶ 28; -Mr. Nielsen threaten ed that “if anybody else plays black m usic, then they’ll get fired.” SOF at ¶ 28; -Ms. Venturini, Mr. Bednar, an d Mr. Bondarenko used the word “Nigger” “quite frequently” at the Miquon workplace, in Mr. Colem an’s presence. SOF at ¶ 29; -Eric Bednar specifically, “used it often...in all types of contexts. Like when he was frustrated, when he wasn’t, he would just use it all the tim e” including during conversations with Mr. Colem an or while standing right next to him . SOF at ¶ 29; 3 -This use of the word “Nigger” all the tim e is corroborated by Mr. Bednar and Mr. Bondarenko’s social m edia postings. SOF at ¶ 30 ; -There is evidence that other em ployees at Miquon also find it to be a racially hostile environ m ent like Mr. Colem an alleges. SOF at ¶ 32; -Defendant adm its that an em ployee com plained that there was a racial slur m ade at Delaney’s in the Sum m er of 20 15 during Mr. Colem an’s em ploym ent, and that Miquon suspected it m ay have been Mr. Colem an who com plained. SOF at ¶ 33; -When asked whether the individual who m ade the racial slur was identified, Mr. Nielsen, Miquon’s General Manager, testified that he “never looked into it. There was no need. ... I didn’t research who, what, why, or when.” SOF at ¶ 34; and -Mr. Colem an was subjected to differential treatm ent in the form of unwarranted criticism or discipline his Caucasian counterparts were not subjected to. For exam ple, Mr. Colem an was disciplined for using his cell phone while at work, while a non-African Am erican em ployee who was also using her phone directly next to him was not sim ilarly criticized or disciplined. Miquon claim s that Delaney’s has had m ultiple African-Am erican bartenders during its existence, in cluding Anna Moore, who worked as the head bartender at Delaney’s before accepting a position as an executive at Resorts International, Serafina Moore, and Colem an’s cousin Ashley Colem an. (Id. at ¶ 27.) It also claim s that Colem an was n ever subjected to racial com m ents by staff, a fact Colem an appears to agree with, stating in deposition that the racial com m ents he com plains of were never directed toward him personally, but notes he “was in the area” and heard it. (Colem an Dep. Tr., Ex. H. at 41:23-44:2.) In deposition, Colem an had trouble placing alm ost all of the alleged com m ents “his ears heard” into context. (Id. at 47:16-51:5; 44:1-2.) He stated that em ployees Tracy, Eric, Vadim , an d Tyler m ade racial com m ents “all the tim e.” Id. at 42:17-19. He 4 recounts Tracy stating “don’t m ake m e get black on you” m eaning that she was frustrated with a custom er and was going to get hostile and angry. Id. 43:1-17. Although not directed at Colem an, because he heard the com m ent, he claim s he reported it to “Bob.” Id. at 44:21-25. Q. To Bob? What’s his last nam e? A. I don’t recall his last nam e. Q. And was it that specific com m ent that you were com plaining about? A. Yes, because at this tim e it was enough. Q. And what was his response? A. He didn’t – he just kind of brushed it off. He didn’t really say anything at that point. Q. Did you ever report that statem ent to Ed Nielsen? A. Not right away, no. Q. How long did you wait? A. I don’t recall, but it wasn’t the sam e n ight because Bob was on duty that night. Q. Well, how soon into your appointm ent did you hear that com m ent? A. Which com m ent? Q. The com m ent “don’t m ake m e go black on you.” A. I don’t recall the tim eline. Q. A week, a m onth? A. I don’t recall the tim eline. Id. at 45. Other incidents include the use of the word n ***** “quite frequently.” Id. 47:1215. When asked in deposition about the use of this word, Colem an was unable to recall dates, context, or circum stances of the utterances. Id. at 48 -50 . Q. I'm asking you under what circum stances let's start with Eric. When did he use that expression and in what context? A. He used it often. It was in all types of contexts. Like when he was frustrated, when he wasn't, he would just use it all the tim e. Q. Tell m e under what circum stances. Would he direct it at you, or was he directing it at the world in gen eral, like a curse word to the m asses or was it to you? 5 A. I wouldn't specify a racial slur as a curse word on the sam e level of weighing, so I'm confused about how you're trying to pose the question. Q. I'm sim ply asking you when did Eric, under what circum stances did he A. I don't recall the circum stances. It was said m ultiple tim es. That's the reason why I went to the m anagem ent and stated. I think -- from m y interpretation, you're m inim izing the fact that it was said. Q. No, I'm not. Let's get away from interpretation. I'm asking you -- you told m e what he said. I'm asking you in what situation did he m ake the statem ent and to whom . A. I don't recall the stated. It was just too frequently. He said it a lot. Q. But was he saying it directly to you personally? A. we're having a conversation, he would say it in us talking, or if I'm like right next to him , you're in a restaurant, so when you're picking up drinks or anything else and you say it, you still said it. It doesn't m atter. Q. But try to tell m e what context he said it in. A. I don't recall. I don't think it m atters. Q. Well, it m atters to m e. A. Okay. To m e a racial slur is a racial slur. Q. And it could m atter to the Court. You can't recall the context in which he said that? A. I said that three tim es at this point. I don't recall. Q. So did you at any point think when he used the "N" word, that he was joking with you in any way? A. No, I didn't know that racial slurs were a joke. Q. I'm not saying they are. I'm just asking, did you ever interpret them that way? A. I never interpret any type of ignorance or racial slurs as a joke. I'm sorry. Q. What about Tracy, sam e kinds of – A. I reiterate the sam e thing. I never think racial slurs or ignorance are ever a joke. They're derogatory. Q. Let's go to Tracy so you can answer m y questions. What words did she use that you found -A. Sam e words. Q. Sam e words? A. Yes. Q. And I'll ask you again. Do you rem em ber the context in which she used any of those words? A. I do not. Q. And would your answer be the sam e for Vadim ? I think you m entioned Vadim . A. Yes. Q. Sam e answer? A. Yes. Q. And, again, you don't recall the context but sam e answers as the other 6 two? A. Yes. Q. Did you hear these com m ents throughout the tim e you were at Delaney's, or was it for a particular period of tim e? A. No. Id. . Colem an states he verbally com plained to Ed and Bob, and eventually Bobbie, but that he could not recall the tim eline, or whether he com plained during his first m onth of the job. Id. at 51:10 -25. Miquon argues that Colem an was term in ated because of a decline in the need for a robust seasonal workforce. After m id-August 20 15, the restaurant undertook a reduction in seasonal workforce, including bartenders, servers, runners an d kitchen workers. (Slawek Decl. ¶ 28.) According to Michael Slawek, he kept Delaney’s General Manager Ed Nielsen inform ed about the need to reduce Delaney’s workforce. (Id. at ¶ 29.) Slawek gave Neilsen the staffing levels he needed to operate the restaurant. (Id.) Nielsen, however, was solely responsible for determ ining when particular term inations would occur and which seasonal worker would be term inated at any given tim e. (Id.) Slawek claim s he never had any discussions with Nielsen about term inating Colem an prior to Colem an’s term ination on Septem ber 21, 20 15. (Id. at ¶ 21.) Although Colem an claim s he advanced num erous com plaints about various m atters, the only racial work-related com plaint Mr. Slawek received occurred in either late J uly or early August, 20 15. Mr. Slawek claim s he was told that an em ployee heard another em ployee use a racial slur at work and m anagem ent was asked to address the situation. (Slawek Decl. ¶ 19.) Mr. Slawek claim s he did not know the nam e of the 7 com plainer or the alleged utterer of the slur. (Id.) At Mr. Slawek’s direction, General Manager Ed Nielsen called a staff m eeting to reinforce Delaney’s policy that racially offensive language or conduct is not tolerated. (Slawek Decl. ¶ 20 ; Nielsen Dep. Tr., Ex. “I,” at 91:11-92:19.) Colem an states that he doesn’t recall any pre-shift m eetings conducted by Ed Nielsen addressing the use of the “N” word by em ployees. Id. at 52:917. Mr. Slawek states that he received no further com plaints concerning racially offensive language. (Slawek Decl. ¶ 20 .) Colem an disputes this statem ent and claim s m ade two attem pts to send his com plaints to Delaney’s m an agem en t. First, he claim s he sent two-page letter, certified m ail, return receipt requested, from a post office in Philadelphia, Pen nsylvania to “Michael Slawek, 426 Washington Street, Cape May, N.J . 0 820 4” on Septem ber 19, 20 15, two days before his term ination. (Colem an Dep. Tr., Ex. “H,” at 77:11-81:13.) The address used by Colem an is for The Ugly Mug, which Mr. Slawek co-owns with his father. (Slawek Decl. ¶ 32.) Colem an does not recall receiving the signed receipt for the letter and has no proof it was delivered. (Colem an Dep. Tr., Ex. “H,” at 79:18 -80 :2.) There is no evidence in the record to suggest that Mr. Slawek received Colem an’s letter prior to Colem an’s term ination on Septem ber 21, 20 15. (Id. at 8 3:19-8 4:3.) Mr. Slawek claim s he did not receive or read Colem an’s Septem ber 19, 20 15 letter until after Colem an was term inated on Septem ber 21, 20 15. (Slawek Decl. ¶ 34, Ex. “B.”) Second, Colem an contends he sent an em ail, the sam e day he m ailed Mr. Slawek’s letter on Septem ber 19, 20 15, to Heidi DiLarso com plaining about racially discrim inatory and offensive con duct at Delaney’s. (Colem an Dep. Tr., Ex. “H,” at 8 8 7:6-23; Slawek Decl. Ex. “C.”) While Ms. DiLarso handles payroll for Delaney’s, she has no m anagem ent authority at Delaney’s. (Slawek Decl. ¶ 36.) Rather, she is the m anager of the Ugly Mug, with an office in that facility. (Id.) According to Ms. DiLarso, the em ail was sent to her personal account. (DiLarso Dep. Tr., Ex. “J ,” at 17:3-12.) She testified in deposition that she does not use that em ail address for business, that it is not publicly posted, that she does not regularly review her em ails, and does not open em ails from unknown em ail addresses. (Id. at 17:9-16, 19:25-21:8.) Ms. DiLarso denies ever receiving an em ail from Colem an dated Septem ber 19, 20 15. (Id. at 17:22-18 :13.) Mr. Slawek states that he and Ms. DiLarso never discussed J ustin Colem an during Colem an’s em ploym ent with Delaney’s. (Slawek Decl. ¶ 37.) II. Su m m ary Ju d gm e n t Stan d ard Federal Rule of Civil Procedure 56(a) generally provides that the “court shall grant sum m ary judgm ent if the m ovant shows that there is no genuine dispute as to any m aterial fact” such that the m ovant is “entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). Such a showing m ust be supported by “citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations . . . adm ission s, interrogatory answers, or other m aterials.” Fed. R. Civ. P. 56 (c)(1)(A). A “genuine” dispute of “m aterial” fact exists where a reasonable jury’s review of the evidence could result in “a verdict for the non-m oving party” or where such fact m ight otherwise affect the disposition of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts, however, will fail to preclude the entry of sum m ary judgm ent. Id. 9 In evaluating a m otion for sum m ary judgm ent, the court m ust view the evidence in the light m ost favorable to the non-m oving party, and m ust provide that party the benefit of all reasonable inferen ces. Scott v. Harris, 550 U.S. 372, 378 (20 0 7); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 20 14). Any such inferences “m ust flow directly from adm issible eviden ce[,]” because “‘an inferen ce based upon [ ] speculation or conjecture does not create a m aterial factual dispute sufficient to defeat sum m ary judgm ent.’” Halsey, 750 F.3d at 287 (quoting Robertson v. Allied Signal, Inc., 914 F.2d 360 , 382 n.12 (3d Cir. 1990 ) (citing Anderson, 477 U.S. at 255)). Accordingly, the m oving party initially has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the non-m oving party m ust identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Again, to withstand a properly supported m otion for sum m ary judgm ent, the non-m oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. “A nonm oving party m ay not ‘rest upon m ere allegations, general denials or . . . vague statem ents . . . .’” Trap Rock Indus., Inc. v. Local 8 25, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 50 0 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. The m ovant can support the assertion that a fact cannot 10 be genuinely disputed by showing that “an adverse party cannot produce adm issible eviden ce to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2). In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a gen uine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determ in ations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). III. D is cu s s io n Analysis of claim s m ade pursuant to the NJ LAD generally follows the an alysis of Title VII claim s. Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486, 498 (3d Cir. 1999). Title VII of the Civil Rights Act of 1964 forbids em ploym ent discrim ination based on “race, color, religion, sex, or national origin.” 42 U.S.C. § 20 0 0 e– 2(a); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (20 0 6). In assessing claim s under Title VII and related retaliation claim s, courts apply the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 8 0 2– 0 3 (1973). Under that fram ework, a plaintiff m ust satisfy the initial burden of m aking a prim a facie case of discrim ination. To establish a prim a facie case of discrim ination under Title VII, a plaintiff m ust show the following: (1) that he is a m em ber of a protected class; (2) that he was qualified for the position; (3) that he suffered an adverse em ploym ent action; and (4) that the adverse action occurred under circum stances that give rise to an inference of discrim ination. J ones v. Sch. Dist. of Philadelphia, 198 F.3d 40 3, 412 (3d Cir. 1999). 11 If the em ployee m akes out a prim a facie case, the burden of production shifts to the em ployer to establish a legitim ate, nondiscrim in atory reason for its actions. Fuentes v. Borough of Watchung, 286 F. App’x 781, 784– 85 (3d Cir. 20 0 8). If the em ployer establishes a legitim ate, nondiscrim inatory reason for its actions, the burden of production shifts back to the em ployee to show that the em ployer’s proffered reason was a pretext for actual discrim ination. Id. The Third Circuit has held that a plaintiff m ay defeat a m otion for sum m ary judgm ent by pointing “to som e evidence, direct or circum stantial, from which a factfinder would reasonably either: (1) disbelieve the em ployer’s articulated legitim ate reasons; or (2) believe that an invidious discrim in atory reason was m ore likely than not a m otivating or determ inative cause of the em ployer's action.” Id. Title VII also prohibits an em ployer from retaliating against an em ployee “because he has opposed any practice m ade an unlawful em ploym ent practice by [Title VII] . . . , or because he has m ade a charge, testified, assisted, or participated in any m anner in an investigation, proceeding, or hearing under [Title VII.]” 42 U.S.C. § 20 0 0 e– 3(a). To establish a prim a facie case of retaliation under Title VII, a plaintiff m ust establish the following: “(1) she engaged in activity protected by Title VII; (2) the em ployer took an adverse em ploym ent action against her; an d (3) there was a causal connection between her participation in the protected activity and the adverse em ploym ent action.” Nelson v. Upsala Coll., 51 F.3d 38 3, 38 6 (3d Cir. 1995). Next, to establish a hostile work environm ent claim under the LAD, a plaintiff “m ust dem onstrate that the defendant’s conduct (1) would not have occurred but for the em ployee’s race; and [the conduct] was (2) severe or pervasive enough to m ake a (3) 12 reasonable [person of the sam e protected class] believe that (4) the conditions of em ploym ent are altered and the working environm ent is hostile or abusive.” Taylor v. Metzger, 70 6 A.2d 685, 688-89 (N.J . 1998 ) (quotations om itted). The New J ersey Suprem e Court requires a cum ulative analysis of the incidents com prising an alleged hostile work environm ent. See Lehm ann v. Toys ‘R’ Us, Inc., 626 A.2d 445, 455 (N.J . 1993). “[A]n em ployer will be held vicariously liable in situations where it delegates authority to control a work environm ent to a supervisor, and the supervisor abuses that authority, or where sexual harassm ent is foreseeable and the em ployer is n egligent in having in place or enforcing anti-harassm ent policies, or where the em ployer intended for or gave apparent authorization to the harassing conduct.” Sm ith v. Exxon-Mobil Corp., 374 F. Supp. 2d 40 6, 421 (D.N.J . 20 0 5) IV. An alys is A. Cla im o f D is crim in atio n The Court finds that Colem an can not establish a prim a facie case of racial discrim ination against Miquon. Colem an can satisfy all of the criteria of a prim a facie case of discrim in ation except the fourth factor—that the term ination gives rise to an inference of unlawful discrim ination. There is no eviden ce in the record to suggest that Colem an’s separation from Delaney’s was m otivated by racial an im us. Even if Colem an could establish a prim a facie case of discrim in ation, the record eviden ce supports Miquon’s proffered reason for his separation as part of the seasonal pare down of the staff, which occurs at the conclusion of every sum m er and im pacts em ployees of every racial background because it is based prim arily upon seniority. 13 Miquon states that Colem an and 54 other em ployees were term inated at the end of the 20 15 season. As an establishm ent at a shore town, the end of the sum m er results in a downturn in business. For this reason, over the course of m any seasons, Delaney’s significantly reduces its staff in a m anner that reflects its needs as the Fall and Winter m onths approach an d business declines. The reduction at the end of 20 15 was, according to Miquon, undertaken to achieve this objective and a total of 55 seasonal em ployees were term inated; 43 were non-m inorities. (Slawek Decl. ¶ 28.) Colem an has not pointed to evidence in the record to suggest that Miquon’s reasons for his term ination were a pre-text for racial discrim ination. Colem an’s term ination was part of the yearly, regular seasonal reduction in staff and his inclusion in the reduction was m otivated by his lack of seniority and his inflexible schedule. Colem an, a resident of Philadelphia, told Ms. Hornbeck prior to his hiring that he was unavailable to work Sundays (church com m itm ents), Tuesday n ights (choir rehearsals) and m ost Wednesday n ights (bible study). (Colem an Dep. Tr., Ex. “H,” at 28:5-17.) Colem an likewise told Michael Slawek at or about the tim e he was hired that he could only work on a part-tim e basis, preferably on Fridays and Saturdays. (Slawek Decl. ¶ 10 .) Colem an also told Mr. Slawek on m ultiple occasions that he had a full-tim e job in Philadelphia, that he had com m itm ents to his church on Sundays and that he was involved in operating an online m usic busin ess. (Id.) The record evidence supports that the decision to term inate J ustin Colem an and the 54 other em ployees term inated in August and Septem ber was necessitated by the season al declin e in the restaurant’s business. (Slawek Decl. ¶ 30 ; Nielsen Dep. Tr., Ex. I at 26:21-27:16.) When seasonal business declines and layoffs are required, 14 m anagem ent at Delaney’s considers several factors in determ ining which seasonal em ployee should be laid-off and in what order. These factors include the length of tim e the em ployee has worked at Delaney’s, the em ployee’s availability to work, and the em ployee’s overall job perform ance. (Nielsen Dep. Tr., Ex. I at 8 9:6-90 :2.) Colem an lacked seniority, being am ong the m ost recent hires and had lim ited availability to work. In addition, Colem an has not put forth evidence to challenge the proffered reason for his term in ation as a pretext for racial discrim ination. Colem an has not “subm it[ed] eviden ce from which a factfinder could reasonably either (1) disbelieve the em ployer's articulated legitim ate reasons; or (2) believe that an invidious discrim inatory reason was m ore likely than not a m otivating or determ inative cause of the em ployer's action.” Keller v. Orix Credit Alliance, 130 F.3d 110 1, 110 8 (3d Cir. 1997) (internal citation and quotation m arks om itted). Colem an’s lack of seniority as one of the shortest-tenured em ployees, the decline of business at the end of the season, and Colem an’s lim ited availability are legitim ate, non-discrim inatory reasons for his in clusion in the 54 staff m em bers im pacted by the reduction in force. (Nielsen Dep. 71:17-74:23) While Colem an highlights instances of the use of racially offensive and insensitive language by m em bers of the restaurant staff, Colem an has produced no evidence to suggest that his race, as an African-Am erican, played any part in his inclusion in the reduction of the work force. See McCray v. DPC Industries, Inc., 942 F. Supp. 288, 293 (E.D. Tex. 1996) (“Racial com m ents that are sporadic or part of casual conversation do not violate Title VII.”) To the contrary, the record reflects a diverse population included in both the reduction of force and in the population of workers chosen to rem ain during the “off-season.” Delaney’s avers it has the highest num ber and percentage of African15 Am erican and other m inority em ployees of any restaurant in Cape May, including current Delaney’s em ployee, Nina Colem an, who is J ustin Colem an’s m other, and Colem an’s cousins Marquees Colem an, who was a busboy at Delaney’s in 20 15 and Ashley Colem an, a server and bartender at Delaney’s since early 20 15. (Id. at ¶¶ 24-25.) Colem an has not challenged this evidence or dem onstrated that he was included in the reduction in staff and/ or treated disparately because of his status as an AfricanAm erican. He has failed to identify an y evidence that other em ployees not in his protected class were treated m ore favorably. As a result, there are no genuine issues of fact related to whether Colem an received disparate treatm ent because of his race an d sum m ary judgm ent is granted as to this claim . Harris v. Holder, 20 16 WL 3388297, at *3 (D.N.J . J une 13, 20 16) (Granting sum m ary judgm ent where there was no evidence that “sim ilarly situated person s who are not African-Am erican were treated m ore favorably.”) B. Re taliatio n There are no genuine issues of m aterial facts related to whether Colem an’s in clusion in the reduction of force was due in part to his com plaints about the racially charged environm ent he claim s existed at Delaney’s. First, Colem an never put his com plaints in writing during his tim e as an em ployee and, prior to his term ination, he never com plained to Michael Slawek about racially offensive conduct. (Id. at 62:17-63:2; Slawek Decl. ¶ 17; Colem an Dep. Tr., Ex. H. at 53:14-16.) Slawek testified that he did not know the nam e of the lone racial com plainant, which prom pted the staff m eeting by Ed Nielsen in m id-sum m er. Although Colem an spoke to m anager Bobbi Hornbeck on m ultiple occasions, his statem ents to Hornbeck were lim ited to com plaints regarding 16 the custom ers he served. (Hornbeck Dep. Tr., Ex. G at 25:18 -26:9.) Colem an has not pointed to any eviden ce to reflect that the Delaneys alleged frustration with Coleman’s com plaints played any part in the decision to term inate him . When relying on tem poral proxim ity, a plaintiff will also have to dem onstrate that the decision m aker accused of taking the adverse action “had knowledge of the protected activity.” Moore, 461 F.3d at 351. Even if Colem an could recall to whom and when he m ade his verbal com plaints, there is no eviden ce to support a causal connection between Colem an’s participation in this protected activity and the adverse em ploym ent action. Nelson, 51 F.3d at 38 6. There is no proof that the certified letter Colem an sent to The Ugly Mug (two days before his term ination) reached Slawek prior to Colem an’s term ination; Colem an does not have the return receipt and the eviden ce reflects that Slawek did not have the letter at that tim e. Likewise, there is no evidence that Heidi DiLarso received and then acted upon the em ail Colem an sen t to her private account. Giving Colem an the benefit of every inference, he has failed to show that Delaney’s would not have term inated his seasonal em ploym ent “but for” the fact that he com plained. Young v. City of Philadelphia Police Dep’t, 651 Fed. App’x 90 , 96 (3d Cir. 20 16). Colem an’s status as the least senior m em ber of the season al staff coupled with his lim ited schedule gives his in clusion in the reduction of force m erit. Therefore, even if Colem an had evidence that he frequently com plained “courts routinely have . . . granted sum m ary judgm ent in favor of an em ployer where the plaintiff’s term ination would have occurred regardless of any alleged retaliatory m otive.” Costa v. Pa. Dep’t of Revenue, Civ. No. 12-854, 20 14 WL 1235879 at *13, (W.D. Pa. Mar. 25, 20 14). For these reasons, 17 Colem an’s retaliation claim fails and sum m ary judgm ent will be granted. C. H o s tile W o rk En viro n m e n t Miquon argues that Colem an’s claim of hostile work environm ent fails because Title VII is not a general workplace civility code. Miquon argues that Colem an cannot dem onstrate that any com m ents about Colem an’s race were ever m ade to Colem an. In addition, even if som e com m ents m ade by em ployees were said, Colem an is unable to recall the circum stances and, therefore, cannot prove that the conduct was sufficiently severe or pervasive to create a hostile work environm ent. The Court agrees. Title VII is not violated by “[m ]ere utterance of an ... epithet which engenders offensive feelings in an em ployee” or by m ere “discourtesy or rudeness,” unless so severe or pervasive as to constitute an objective change in the conditions of em ploym ent. See Faragher v. City of Boca Raton, 524 U.S. 775, 78 7, 118 S. Ct. 2275, 141 L.Ed.2d 662 (1998 ) (citations om itted). In determ in ing the existence of a hostile environm ent, courts look at the totality of all the circum stances in cluding the frequency of the conduct, the severity of the conduct, whether it is physically threaten ing or hum iliating or m erely an offensive utterance, and whether it unreasonably interferes with an em ployee's work perform ance. Faragher, 118 S. Ct. at 2283. The em ployee's perception of a hostile environm ent m ust be subjectively felt and objectively reasonable. Id. “For racist com m ents, slurs and jokes to constitute a hostile work environm ent, there m ust be m ore than a few isolated in cidents of racial enm ity, m eaning that instead of sporadic racist slurs, there m ust be a steady barrage of opprobrious racial com m ents.” Schwapp v. Town of Avon, 118 F.3d 10 6, 110 – 11(2d Cir.1997); Al-Salem v. Bucks Cty. Water & Sewer Auth., No. CIV. A. 97-6843, 1999 WL 18 167729, at *5 (E.D. Pa. Mar. 25, 1999). To establish a claim under Title VII based on an intim idating or offensive work environm ent, a plaintiff m ust show: “(1) that he or she suffered intentional discrim ination because of race; (2) the discrim ination was pervasive and regular; (3) the discrim ination detrim entally affected the plaintiff; (4) the discrim in ation would detrim entally affect a reasonable person of the sam e race in that position; and (5) the existence of respondeat superior liability.” See Am an v. Cort Furniture Rental Corp., 8 5 F.3d 10 74, 10 81 (3d Cir. 1996). The frequency of the conduct identified by Colem an is insufficient to establish a hostile working environm ent. Lawrence v. F.C. Kerbeck & Sons, 134 F. App'x 570 , 571– 72 (3d Cir. 20 0 5). The con duct Colem an identifies is infrequent and there is no eviden ce put forth by Colem an to establish that the conduct interfered with his work perform ance. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L.Ed.2d 295 (1993). Colem an has not identified language that was intentionally used against him because of his race that he faced discrim ination so regularly and pervasive that it detrim entally affected him . He was unable to place the utterances into a context or give a tim efram e, and, while he does aver that offense language was used, his descriptions depict sporadic use of racist slurs by non-m anagerial em ployees. He was unable to recall when he m ade verbal com plaints. Given the opportunity to expand on the m anner in which the racist language was used, Colem an stated that it was used and did not recall or detail any facts to show that the racist language was weaponized. In addition, even if the em ployee language could be construed as creating a hostile working environm ent, there is no basis for vicarious liability. See Caver v. City of 19 Trenton, 420 F.3d 243 (3d Cir. 20 0 5). “In evaluating a hostile work environm ent claim under ... Title VII ... we are m indful that offhanded com m ents, and isolated incidents (unless extrem ely serious) are not sufficient to sustain a hostile work environm ent claim . Rather, the conduct m ust be extrem e to am ount to a change in the term s and conditions of em ploym ent.” Id. at 262-3 (internal citations om itted). In Huston v. Procter & Gam ble Paper Products Corp., 568 F.3d 10 0 , 10 4 (3d Cir. 20 0 9), the Third Circuit held that “em ployer liability for co-worker harassm ent exists only if the em ployer failed to provide a reason able aven ue for com plaint or, alternatively, if the em ployer knew or should have known of the harassm ent and failed to take prom pt and appropriate rem edial action.” Id. (citing Weston v. Pennsylvania, 251 F.3d 420 , 427 (3d Cir. 20 0 1, abrogated in part on other grounds by, Burlington N. & Santa Fe Railway Co. v. White, 548 U.S. 53, 67 (20 0 6)). The test is whether “an em ployer knew or should have known about workplace [ ] harassm ent if m anagem ent-level em ployees had actual or constructive knowledge about the existence of a [ ] hostile work environm ent.” Id. (internal quotation m arks and em phasis om itted). In addition, courts m easure whether “[a]n em ployer’s rem edial action is adequate if it is reasonably calculated to prevent further harassm ent.” Id. at 110 . The record reflects that when Mr. Slawek becam e aware of an anonym ous com plaint in m id-sum m er, he ordered a staff m eeting which was ultim ately held by Ed Nielsen. Neither Nielsen or Slawek received any additional com plaints and Colem an agrees that he did not send any written com plaints until he m ailed and em ailed the letters on the weekend preceding his term in ation. Thus, there is no genuine issue as to any m aterial fact regarding whether Miquon knew of the alleged harassm ent an d failed 20 to take prom pt and adequate rem edial action. There are no written com plaints m ade by Colem an, with the exception of the em ail and letters he allegedly sent days prior to his term ination, or any evidence that other em ployees had ever m ade a com plaint of discrim ination or harassm ent. Therefore, even if the racial slurs uttered by Colem an’s co-workers are sufficient to establish a hostile work environm ent, there is no evidence in the record to support a claim of vicarious liability against Miquon. V. Co n clu s io n For the reasons set forth above, as well as those expressed on the record, sum m ary judgm ent is granted in favor of Miquon. An appropriate Order shall issue. Dated: Decem ber 17, 20 19 s/ J oseph H. Rodriguez Hon. J oseph H. Rodriguez, UNITED STATES DISTRICT J UDGE 21
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