SIMANDLE, Chief Judge.
Plaintiff Jack Guarneri ("Plaintiff") filed this lawsuit against his former employer Buckeye Pipe Line Services C., ("Defendant Buckeye") and his former supervisor Greg Engelbart, ("Defendant Engelbart") (hereafter "Defendants") alleging violations of the New Jersey Law Against Discrimination (NJLAD) for terminating his employment after he took disability leave for his bipolar disorder. Plaintiff asserts five Counts of NJLAD violations: (1) that Defendant Buckeye terminated Plaintiff because he had an actual disability; (2) that Defendant Buckeye terminated Plaintiff because they perceived he had a disability; (3) that Defendant Buckeye failed to reasonably accommodate Plaintiff's disability or engage in the required interactive process; (4) that Defendant Engelbart aided and abetted Buckeye in its violations
Presently before the Court is Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 [Docket Item No. 37], arguing that Plaintiff was fired for legitimate non-discriminatory reasons. Plaintiff opposes the motion [Docket Item No. 41], to which Defendants have submitted a reply. [Docket Item 45]. With regard to Counts One and Two, Defendants assert that Plaintiff cannot establish a prima facie case of disability discrimination under the NJLAD because Plaintiff was not meeting his employer's expectations at the time of termination. As to Count Three, Defendants argue that Plaintiff was not able to perform the essential functions of his job and was therefore not a "qualified individual" entitled to accommodation under the NJLAD. Finally, as to Count Four, Defendants assert that the claim against Defendant Engelbart for aiding and abetting is invalid because there was no predicate violation of the NJLAD.
The motion is decided without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth herein, the Court will grant Defendants' motion as to Counts One, Two, and Three because Plaintiff has failed to establish a prima facie case of unlawful discrimination under the NJLAD. The Court will further grant Defendants' motion as to Count Fours and Five because they fail as a matter of law.
New Jersey Law Against Discrimination
The New Jersey Law Against Discrimination ("NJLAD"), was enacted in 1945 with the express purpose of ensuring civil rights, particularly in the area of employment discrimination.
Although the statute prohibits any unlawful employment practice against a handicapped person, the provisions of the NJLAD do not apply if "the nature and extent of the handicap reasonably precludes the performance of the particular employment." N.J.S.A 10:5-4.1. Therefore, although the statute prohibits discriminatory employment practices, "the NJLAD acknowledges the right of the employers to manage their businesses as they see fit."
Summary Judgment Record
The Court begins with an examination of the factual record in this action, beginning with Defendants' Statement of Material Facts Not in Dispute ("SMF").
1. Plaintiff's Sales Representative Position at Buckeye
Plaintiff was hired in April 2008 as a sales representative for petroleum distributor Farm & Home Oil. (SMF ¶ 1.) Farm & Home Oil was soon after acquired by Defendant Buckeye, and Plaintiff remained employed by Defendant Buckeye until his termination on January 23, 2012. (SMF ¶ 2.) At all points during his employment at Farm & Home and Buckeye, Defendant Engelbart was Plaintiff's direct supervisor throughout Plaintiff's employment at Buckeye. (SMF ¶ 1; Guarneri Dep., at 38:10-39:8, 40:10-13.)
Plaintiff was responsible for a large territory covering New Jersey, Delaware, and Eastern Pennsylvania. (SMF ¶ 4.) Driving long distances every day was a core job function in regards to both of Plaintiff's duties of adding new clients and maintaining existing relationships. (SMF ¶ 8; Def. Ex. 24, Engelbart Dep. 27:5-15.) Indeed, Plaintiff testified that his job required him to drive for up to six hours a day, four or five days a week. (Def Ex. 22, Guarneri Dep., at 89:5-16). Due to these travel demands, sales staff were provided with company cars and fuel cards. Plaintiff was issued a 2008 Chevrolet Equinox. (SMF ¶ 7; Def. Ex. 20 ¶ 5.)
The exact characterization of Plaintiff's job function at Buckeye is the subject of some dispute between the parties, but ultimately, the discrepancy is non material. Defendant Engelbart testified that the "job is a sales job rather than administrative type" (Engelbart Dep., at 11:14-15.) Plaintiff himself, when asked what his job function was, responded simply that he was a "sales representative." (Guarneri Dep., at 39:9-12.)
Plaintiff started his role at Farm & Home after 20 years in various roles supervising company owned and operated stations for Sunoco. (Def. Ex. 22, Guarneri Dep., at 31:3-10.) During the early years of his employment, August 2008 to April 2010, Plaintiff was able to capitalize on contacts with local stations made while previously working at Sunoco and added eight new accounts.
2. Plaintiff's Job Performance Deteriorates
Defendant Engelbart testified that he began to be concerned with Plaintiff's job performance around the time he closed his final deal with the Margate Sunoco in April 2010, saying that he failed to see the "activity level [and the] prospecting ability" that Defendant Engelbart believes are crucial to success in the industry. (Engelbart Dep., at 5-15.) In April, 2011 Defendant Engelbart submitted an employee review for Plaintiff, indicating his performance "sometimes below expectations," and "need[ed] improvement." (SMF ¶ 10.)
After Defendant Engelbart's negative performance review, the factual record reflects a substantial deterioration in Plaintiff's employment performance over the subsequent months. On April 14, 2011 Defendant Engelbart issued Plaintiff a written warning for insubordination for an unexcused absence and for failure to answer his voice mails.
3. Questionable Use of Company Gas Card
Independent of Plaintiff's unexcused absences, sales performance, and poor communication with both customers and supervisors, Plaintiff's use of his company card for gas purchases was flagged as a potential abuse of the company's policy. (Def. Ex. 7.) A "huge red flag" was raised on April 29, 2011 when after an analysis of all representatives' gas charges revealed Plaintiff's charges as a "big anomaly." (
Plaintiff had a prior disciplinary infraction from January 2009 for submitting a personal cigarette purchase for reimbursement on a company expense report, and was informed at that time that similar infractions could lead to immediate termination. (SMF ¶ 29; Def. Ex. 9; Def. Ex. 22; Guarneri Dep. 127:21-128:25.)
4. Human Resources Notified of Plaintiff's Poor Performance
By May 12, 2011 Defendant Engelbart had grown frustrated enough with Plaintiff's performance to send an email to Joan Gower in Buckeye's Human Resources Department, with the subject "Jack Guarneri performance issues," in which he listed perceived shortcomings in Plaintiff's job performance. (Def. Ex. 10.) Defendant Engelbart pointed to Plaintiff's failure to complete any sales since April 2010. (
In addition to bringing in no new business, Plaintiff began to neglect some of his current customers. On June 2, 2011 Defendant Engelbart sent two emails explaining Plaintiff's removal from an account after receiving complaints from the customer. (Def. Ex. 19.) In the first email, Defendant Engelbart told Plaintiff, "I have been contacted by [the customers] ... I told them of your recent illness and vacation and promised them [Buckeye sales representative] Don Hamilton instead of you going forward. They could not reach you and I can't let them go further without assistance." (
5. Plaintiff's Illness
Well before starting his disability leave in June 2011, Plaintiff had experienced health issues, which forced him to miss work, sometimes for an extended amount of time. In 2008, Plaintiff had surgery related to Diverticulitis, and was out for four weeks, during which time Defendant Buckeye paid his salary for the entire course of his recovery (SMF ¶ 40; Def. Ex. 20 No. 19.) After this point, Plaintiff would periodically have flair ups of his Diverticulitis; Plaintiff informed Defendant Engelbart that he was having such an occurrence on May 13, 2011, just a few weeks before he took his extended sick leave on June 6, 2011. (Def. Ex. 11.) Defendant Engelbart responded to this leave by telling another employee that Plaintiff is "usually out for 3 days when this happens," suggesting that he was familiar with and understanding of Plaintiff's condition.
6. Plaintiff Takes Extended Leave of Absence
Plaintiff took an extended leave of absence from June 6, 2011 to January 22,
Shortly after Plaintiff began his sick leave, Defendant Engelbart emailed Ralph Sisco in Buckeye's Human Resources Department regarding the gas expenses for Plaintiff's company card. (Def. Ex. 8; Pl.'s Ex. D.) Mr. Sisco responded that the company car should be returned while he was out on disability. (
7. Plaintiff's Termination
Concerns about Plaintiff's job performance were raised on multiple occasions before Plaintiff began his sick leave, both directly with Plaintiff — in the form of performance reviews, multiple insubordination write ups, and requirements that he physically show up to work on Fridays — as well as between Defendant Engelbart and Human Resources. According to Defendant Engelbart, discussions regarding Plaintiff's potential termination occurred over many months throughout 2011; however, there was no explicit decision relating to his termination until after Plaintiff began his leave on June 6. (Def. Ex. 24; Engelbart Dep., at 8:22-24, 9:3-5.)
At the start of his disability leave, several emails sent by Defendant Engelbart intimated he expected Plaintiff would return to the same sales position upon expiration of Plaintiff's disability leave. On June 17, Defendant Engelbart sent an email to Plaintiff recommending Plaintiff refrain from working "until you return." (Pl.'s Ex. E.) Also on that day, Defendant Engelbart emailed a customer informing him that Plaintiff was out on leave and that the customer should not contact Plaintiff directly "until he comes back to work in mid-July." (Pl.'s Ex. E.) Defendant Engelbart subsequently sent an email to Human Resources charting the lack of sales completed by Plaintiff and another sales representative, and stating that "upon Jack [Guarneri's] return, his lack of new business must be addressed (as well as the use of a company credit card)." (Pl.'s Ex. I.) The language in all of these emails suggests strongly that Defendant Engelbart and others employed by Defendant Buckeye expected the Plaintiff to return to work at some point. Viewing this in the light most favorable to the Plaintiff, the court must conclude that there was no final or explicit decision made with regards
The first explicit mention of an actual termination occurred December 2, 2011 in an email written by Ralph Sisco, a representative of Buckeye's Human Resources Department. (Def. Ex. 14.) The email is part of a longer thread where Plaintiff continues to delay his return date to December, then again to January 2012, after further consultation with his doctors. (
Defendant Engelbart testified that he "felt [Plaintiff] should be terminated. But I also know I was just an advisor." (Engelbart Dep., at 62:13-19.) The December 2 email from Mr. Sisco supports the position that it was the Human Resources Department who had authority for and made the final decision to terminate Plaintiff. (
Defendants had also terminated another sales representative who reported to Defendant Engelbart while Plaintiff was on sick leave, also for performance issues. (Pl.'s Ex. I.) This employee, Pat McGinley, also had deficient sales performance — he had not made any sales in over a year — leading up to his termination. (
On January 23, 2012, the day Plaintiff was scheduled to resume work, he met at 2 pm with Joan Gower of Human Resources and Defendant Engelbart, at which point they communicated the decision to terminate his employment. (SMF ¶ 60, 61.) On Plaintiff's application for Unemployment Compensation, signed by Ms. Gower, the reason cited for termination was "Unsatisfactory Work Performance", specifically "Lack of Sales." (Pl.'s Ex. CC.) Ms. Gower further specified that there was no "willful misconduct" on behalf of Plaintiff. (
Plaintiff filed this Complaint on February 21, 2014 [Docket Item No. 1]. Defendants removed the case to Federal court and thereafter filed the instant motion for summary judgment, to which the Court now turns. [Docket Item No. 37].
III. STANDARD OF REVIEW
At summary judgment, the moving party bears the initial burden of demonstrating that there is no genuine issue of material fact and that judgment is appropriate as a matter of law. Fed. R. Civ. P. 56(a);
In deciding a motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial.
Plaintiff alleges four counts of disability discrimination in violation of the New Jersey Law Against Discrimination. The Court will first consider the claims against Defendant Buckeye.
A. Discriminatory Discharge (Counts 1 and 2)
For the following reasons, Defendants are entitled to summary judgment on Counts One and Two of Plaintiff's Complaint for discrimination based on a perceived or actual disability because Plaintiff cannot make out a prima facie case of discrimination. The Court therefore need not consider whether a reasonable fact finder would believe Defendants' reason for terminating Plaintiff in January 2012 was pretextual.
Disability discrimination claims under the NJLAD and the ADA are analyzed under the same framework.
In the instant case, neither party disputes that Plaintiff is disabled within the meaning of the NJLAD and ADA. Likewise, it is undisputed that Plaintiff was terminated. Plaintiff has therefore sufficiently pled the first and third elements of the prima facie case for disability discrimination in violation of the NJLAD. The parties disagree, however, on whether Plaintiff can satisfy the second prong of the prima facie case, namely, whether Plaintiff was performing at a level that met Buckeye's expectations as his employer. Thus, the determinative question for this summary judgment motion is whether there is a genuine dispute of material fact whether Plaintiff was performing at a level that met the employer's expectations.
Though the Court will read the facts in the light most favorable to Plaintiff, the Court is not required to read facts that simply do not exist. Nor is the Court permitted to move forward a disability discrimination cause of action under the NJLAD if a plaintiff cannot first establish each of the prima facie elements. Here, Plaintiff is unable to pass the threshold requirements for bringing a disability discrimination claim under the NJLAD because there is no factual dispute as to whether Plaintiff was meeting his employer's expectations.
Plaintiff is correct in asserting that the law applies an objective test when evaluating the "employers' legitimate expectations" rather than a subjective test. (
However, in the instant case, Defendants' allegations of poor performance are corroborated by a myriad of undisputed facts that show Plaintiff objectively failed to perform at a level that met Defendants' expectations prior to his taking disability leave on June 6, 2011. It is undisputed that prior to his disability leave, Plaintiff failed to: (i) secure any new business for Buckeye for over thirteen months, (Def. Ex. 22, Guarneri Dep. 53:17-19.); (ii) communicate with his supervisor Defendant Engelbart, which led to insubordination write-ups
Plaintiff argues that "all of the `evidence' of his performance issues should be disregarded by this Court," because, Plaintiff alleges, it is based on Defendants' subjective evaluations. This reflects a misunderstanding of the law's distinction between subjective and objective qualities. (Pl. Opp. 33.) The Court's delineation of these two performance measures in
In the instant case, there were objectively clear and measurable inadequacies in Plaintiff's performance that are not contradicted by the evidence in the record. Plaintiff's prolonged failure to bring in new business,
Additionally, evaluating an employee based on performance standards expected of all employees in a similar position suggests the use of sound, objective criteria.
Plaintiff counters that because no official Performance Improvement Plant (PIP) was ever offered to Plaintiff prior to his termination, his treatment was not consistent with that of Mr. McGinley, who was first offered a PIP plan (Pl.'s Ex. DD.) Defendants respond by stressing that their employee disciplinary procedures clarify that "The Company retains the right to administer discipline in any manner it sees fit." (
Regardless, the NJLAD itself makes clear that nothing "shall be construed ... to preclude discrimination among individuals on the basis of competence, performance, conduct or any other reasonable standards." N.J. Stat. Ann. § 10:5-2.1. The fact that Defendants continued to invest energy into making Plaintiff a successful employee does not negate the undisputed fact that Plaintiff was failing to objectively "perform in the position." The NJLAD specifically provides that an employer may permissibly terminate an employee for "conduct" or "any other reasonable standard[.]" N.J. Stat. Ann. § 10:5-2.1. Plaintiff clearly and without dispute, failed to perform within Buckeye's reasonable expectations of his employment
Plaintiff further argues that because he still remained employed with Buckeye, he was necessarily meeting employment expectations. However, the fact that an employee holds an employment position does not mean he performed in that position to the employer's expectations. That interpretation would bely the law and common sense, essentially forcing employers to immediately terminate an employee whose performance is subpar, instead of working to improve the employee's performance. Plaintiff insists that Defendants' performance measures should be deemed irrelevant because of the court's proclamation in
It is undisputed from the record that, collectively, Plaintiff's lack of new business, poor communication with clients and supervisors, and suspect use of the company gas card, fell below Buckeye's performance expectations of its sales representatives. Therefore, Plaintiff cannot establish the second prong of the prima facie case for disability discrimination under the
B. Failure to Accommodate (Count 3)
Summary Judgment is warranted on Count Three in the Complaint, Plaintiff's failure to accommodate claim. Although the NJLAD statute does not specifically address reasonable accommodation, "courts have uniformly held that the [NJLAD] nevertheless requires an employer to reasonably accommodate an employee's handicap."
"To prevail on a failure to accommodate claim, a plaintiff must first present the prima facie elements required in any disability discrimination claim."
C. Aiding and Abetting (Count 4)
Defendant Engelbart is entitled to summary judgment on Count Four of Plaintiff's Complaint, alleging Defendant Engelbart aided and abetted Defendant Buckeye in violating the NJLAD, because Plaintiff failed to raise a genuine issue of material fact on this claim. A person aids and abets a violation of the NJLAD when he knowingly gives substantial assistance or encouragement to unlawful discriminatory conduct.
Following this standard, the Court concludes that Plaintiff has failed to present evidence that Defendant Engelbart aided and abetted Defendant Buckeye in alleged disability discrimination against Plaintiff. First, as previously stated, Plaintiff cannot establish sufficient support to show Defendants discriminated against Plaintiff or performed any unlawful act. Additionally, there is zero evidence in the record to support the narrative that Defendant Engelbart perceived a violation of Plaintiff's rights, and knowingly took steps to further that violation. (
While the Court has carefully reviewed the factual record in granting Defendants' summary judgment on Count Four, Plaintiff's failure to respond to Defendants' motion on this Count corroborates the Court's finding that there is no genuine issue of material fact on this claim. "Although entitled to the benefit of all justifiable inferences from the evidence, the nonmoving party may not, in the face of a showing of a lack of a genuine issue, withstand summary judgment by resting on mere allegations or denials in the pleadings."
D. Claims Against XYZ Entities and J. Doe Defendants
The Court grants summary judgment on Count Five of Plaintiff's Complaint because Plaintiff has not identified the John Doe Defendants and no named Defendants remain in the action. There is nothing before the Court or on the docket to suggest that Plaintiff has identified and named these individuals, and it follows that there is no indication that they were ever served with the Complaint or Amended Complaint. The time for service under Fed. R. Civ. P. 4(m) has long expired,
For the foregoing reasons, Defendants' motion for summary judgment is granted in full. Plaintiff's claims are hereby dismissed. An appropriate Order follows.