Christine A. MICHAELS, Appellant v. BJ‘S WHOLESALE CLUB, INC.
No. 14-3370.
United States Court of Appeals, Third Circuit.
Filed March 20, 2015.
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Submitted Under Third Circuit L.A.R. 34.1(a) March 19, 2015.
Brett M. Anders, Esq., Jackson Lewis, Morristown, NJ, for BJ‘s Wholesale Club, Inc.
Before: SMITH, JORDAN, and SLOVITER, Circuit Judges.
OPINION *
JORDAN, Circuit Judge.
Christine A. Michaels appeals an order of the United States District Court for the District of New Jersey granting summary judgment against her and in favor of BJ‘s Wholesale Club, Inc. (“BJ‘s“) on her claim that BJ‘s retaliated against her for activity protected under New Jersey‘s Law Against Discrimination (“LAD“),
I. Background
BJ‘s hired Michaels as an Assistant Manager in August 1991. She received several promotions during the course of her employment, including one to General Manager and then to Regional Manager. As Regional Manager, she supervised the operations of several BJ‘s stores in northern and central New Jersey. When Michaels first became Regional Manager, she
On September 22, 2009, BJ‘s received an anonymous complaint to its ethics hotline that Michaels and other employees had consumed alcoholic beverages on the premises of a BJ‘s store in East Rutherford, New Jersey. According to the BJ‘s employee handbook, the Club Team Member Guide, “[p]ossession, distribution, use, or being under the influence of illegal drugs or alcohol ... on Company property at any time” is a high-level infraction which “may result in immediate termination of employment for the first offense.” (App. at 350.) BJ‘s promptly commenced an investigation, which was led by Robin Bombardier, an Area Human Resources Manager, and Robert Kirby, a Regional Asset Protection Manager. Michaels was interviewed and admitted to consuming alсohol on BJ‘s property on the day in question. Charmaine Sealey, a Regional Asset Protection Manager, also admitted to having consumed alcohol in the store parking lot that day. After completing the investigation, Bombardier and Kirby presented their findings to Gallagher, Catuna, and Susan Hoffman, BJ‘s Senior Vice President of Human Resources. The three ultimately decided to terminate both Michaels‘s and Sealey‘s employment. Although other, lower-ranking personnel also participated in the drinking incident, Gallagher, Catuna, and Hoffman decided to terminate only the most senior employees.
Michaels contends that her dismissal for consuming alcohol on company property was pretextual. She says that she and the others were merely engaging in what was at BJ‘s a common practice known as an “inventory toast,” where employees consumed alcohol on company premises to celebrate the completion of taking a store‘s inventory. She asserts that this practice has been going on sinсe she first began working at BJ‘s in 1991 and that many other high-ranking officials, including her supervisor, Buonvicino, and other Regional Managers, had been present at inventory toasts in the past. A current Regional Manager, Rafаt Raghib, and a General Manager, Beverly Bongiorno, both corroborated Michaels‘s testimony.1 According to Michaels, the real reason she was fired was as retaliation for complaints of discriminаtory conduct that she had made against Catuna, the last of which she made in August 2009, approximately five weeks before she was terminated.2 She says that she reported Catuna‘s behavior to Buonvicino and Cаroline Hicks, a Human Re-
Michaels filed a complaint in the District Court on September 29, 2011, asserting seven claims, four of which were dismissed with prejudice by stipulation. The three remaining claims were for retaliation in violation of the LAD, breach of contract, and breach of the implied duty of good faith and fair dealing. The District Court granted summary judgment in favor of BJ‘s on all three claims. Michaels appeals only the Court‘s grant of summary judgment on her retaliation claim, and her аppeal is timely.
II. Discussion3
Michaels argues that BJ‘s retaliated against her for lodging complaints about Catuna‘s discriminatory conduct. An unlawful retaliation claim under the New Jersey LAD is analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Mancuso v. City of Atl. City, 193 F.Supp.2d 789, 811 (D.N.J. 2002) (“Analysis of LAD retaliation claims follows the now-familiar burden-shifting framework established for disparate treatment claims under Title VII and the LAD.“) Under that framework, a plaintiff has the burden of establishing a prima faciе case of retaliation by showing that she was engaged in a protected activity of which the employer was aware, that she was subject to adverse employment action, and that there was a causal link between the protected activity and the adverse employment action. Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 660 A.2d 505, 508 (1995). If the plaintiff is able to make such a showing, the burden of production shifts to the employer to “articulate some legitimate, non-discriminatory reason’ for its decision.” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012) (quoting McDonnell, 411 U.S. at 802). If the employer “meets this minimal burden,” id., the plaintiff “must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer‘s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer‘s аction,” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
Although Michaels makes a series of arguments relating to the pretextual nature of her termination, we need not reach those arguments because she fails to establish a genuine dispute of fact as to her prima facie case of retaliation. Specifically, she has provided no evidence that the people who fired her were aware that she was engaged in protеcted activity, i.e., complaining of discriminatory conduct in the workplace. Even assuming that Michaels did complain to Buonvicino and Hicks about Catuna, she has pointed to
She argues, however, that indirect and circumstantial evidence suggests that Hicks and Buonvicino did rеlay her complaints to Gallagher, Catuna, and Hoffman. She says that Buonvicino told her he would follow up directly with Catuna about one of her complaints, and she notes that Buonvicino himself stated that he generally spoke with Catuna daily. She also says that Hicks testified that she never failed to follow up with her supervisors regarding complaints of discriminatory conduct. But Buonvicino‘s regular contact with Catuna doеs not raise an inference that Buonvicino told anyone that Michaels was the source of complaints. Nor does Hicks‘s general statement, completely unrelated to the specific cоmplaint at issue here, demonstrate that Michaels‘s complaints came before Hoffman, Catuna, or Gallagher. Even assuming that Hicks did follow up with her supervisor about those complaints, Michaels provides no evidence that Hoffman, Catuna, or Gallagher were the supervisors to which Hicks would report or that, under normal procedure, the complaints would eventually reach any of them.
Although Michaels may have “had every hope that [her] complaints were going to be addressed” (App. at 172), that alone, untethered from any evidence showing that her hope was well-founded, is not sufficient for a rational juror to conclude that Catuna, Hoffman, or Gallagher knew of her complaints at the time they fired her. Thus, her assertions do not demonstrate a genuine factual dispute and are insufficient to defеat BJ‘s motion for summary judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (“When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the reсord taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.‘” (citations and footnote omitted)). The District Court accordingly did not err in holding that Michaels failed to establish a prima facie case of retaliation.
III. Conclusion
We will therefore affirm the District Court‘s order granting summary judgment in favor of BJ‘s on the retaliation claim.
* This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.