2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-14-2011

Thomas Finn v. JB Hunt Transp Ser

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3295

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Recommended Citation

"Thomas Finn v. JB Hunt Transp Ser" (2011). 2011 Decisions. Paper 884.

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-3295

_____________

THOMAS A. FINN, 

 Appellant

v.

J.B. HUNT TRANSPORT SERVICES, INC.; 

X AND Y CORPORATIONS, (said entities being fictitious and presently unknown); 

JOHN DOES 1-10, (said entities being fictitious and presently unknown)

_____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3:07-cv-04851)

District Judge: Hon. Garrett E. Brown, Jr.

Argued: January 11, 2011

Before: MCKEE, Chief Judge, and AMBRO and CHAGARES, Circuit Judges.

(Filed: July 14, 2011)

Neal M. Unger, Esq. (Argued)

Neal M. Unger, P.C.

334 Milltown Road, Third Floor

East Brunswick, New Jersey 08816

Counsel for Appellant

Madeline S. Baio, Esq.

Carianne P. Torrissi, Esq. (Argued)

Rawle & Henderson, LLP
2

100 West Sixth Street, Suite 300

Media, Pennsylvania 19063

Counsel for Appellee

_____________

OPINION

_____________

CHAGARES, Circuit Judge.

Thomas A. Finn appeals from the District Court’s grant of summary judgment in 

favor of J.B. Hunt Transportation Services, Inc. (“J.B. Hunt”) on his New Jersey Law 

Against Discrimination (“NJLAD”) claims. For the reasons set forth below, we will 

affirm the District Court’s decision.

I.

Because we write solely for the benefit of the parties, we will only briefly recite 

the facts. Finn was initially hired as a driver for J.B. Hunt on December 28, 1992, at the 

age of 48. Shortly thereafter he transferred to an office position, and then was promoted 

to Safety Manager, a position that he held until 1999. In 1999, Finn was again promoted, 

this time to the position of Operations Manager, and this promotion was followed with 

another promotion to Fleet Manager in 2000. In February of 2003, Finn was injured and 

took leave from work. When he returned in May of that year, he was placed in the 

position of Area Service Manager (later renamed Logistics Manager) in J.B. Hunt’s 

Elizabeth, New Jersey facility, under the supervision of Cheryl Sawula. 

On September 11, 2003, Finn received his first official notice of the fact that he 

was not meeting Sawula’s expectations, which came in the form of a 90-Day 
3

Performance Review. In this review, Sawula listed three broad areas of deficient 

performance (communication with and management of third parties, customer service, 

and equipment accountability) on which Finn needed to focus. On October 24, 2003, 

Finn received his first disciplinary action from Sawula when she filed a Job Performance 

Documentation highlighting the areas outlined in his September Performance Review that 

still needed improvement. Along with this Job Performance Documentation, Finn was 

given a one-day suspension and warned that failure to improve his performance could 

result in termination. In March of 2004, Sawula again submitted a Job Performance 

Documentation, which outlined areas that still required attention. Finn then had his 

annual performance review in May, and as part of this review received eleven “Needs 

Improvement” ratings as well as several “Unacceptable” ratings, the lowest two levels on 

J.B. Hunt’s four-tiered rating system. This evaluation was also reviewed and contained 

comments written by Sawula’s supervisor, Robert Coulter.

In October 2004, Finn was demoted to the position of Fleet Manager, but 

remained under Sawula’s supervision. He received an annual performance review in 

May of 2005, and again was given an overall rating of “Needs Improvement.” This was 

followed in July of 2005 with a Job Performance Documentation, which stated that “this 

shall serve as Mr. Tom Finn’s written warning regarding professionalism and attitude 

while at work.” Appendix (“App.”) 117. Despite the lackluster performance review and 

the Job Performance Documentation, Finn did receive a bonus at the end of 2005 and a 

pay raise at the beginning of 2006.
4

Finn’s 2006 annual review came in April, and again had ratings of “Needs 

Improvement” in eleven categories. As Sawula did not believe that he was adequately 

improving his performance, Finn was terminated on November 29, 2006, at the age of 62. 

Finn filed suit on August 2, 2007, in New Jersey Superior Court, requesting relief 

under the NJLAD, as well as asserting claims for intentional infliction of emotional 

distress and breach of contract. Specifically, Finn asserted that he was discriminated 

against because of his age. He alleged that he was given unmanageable duties to set him 

up for failure, that his performance was judged more harshly than that of his younger 

counterparts, and that his termination was part of a broader plan by J.B. Hunt to replace 

the older portion of its workforce with employees who were substantially younger. The 

case was removed to the United States District Court for the District of New Jersey on 

October 5, 2007, and the District Court entered summary judgment in J. B. Hunt’s favor 

on July 7, 2009. Finn filed the instant appeal on August 4, 2009, but appeals only the 

District Court’s decision on his NJLAD claims.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1441, and 

we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the 

District Court’s grant of summary judgment. Bouriez v. Carnegie Mellon Univ., 585 

F.3d 765, 770 (3d Cir. 2009).

III.

Claims brought under the NJLAD that seek to prove discrimination by using 

circumstantial evidence are evaluated under the McDonnell Douglas framework. Bergen 
5

Commercial Bank v. Sisler, 723 A.2d 944, 949, (N.J. 1999). This framework allows the 

plaintiff to create an inference of discrimination by establishing a prima facie case of 

discrimination. This prima facie case may then be rebutted by the employer if it is able to 

articulate a legitimate, nondiscriminatory reason for the adverse employment action. The 

production of a legitimate, nondiscriminatory reason switches the focus back to the 

plaintiff who must then prove that the employer’s proferred reason was a pretext for 

discrimination. Id. at 954-55. The District Court in this case determined that Finn had 

adequately established a prima facie case of discriminatory discharge based upon his age, 

and that J.B. Hunt successfully provided a legitimate nondiscriminatory reason for his 

termination—his poor job performance. The District Court concluded, however, that 

Finn failed to carry his burden of demonstrating that J.B. Hunt’s proffered reason was a 

pretext, and, therefore, failed on his ultimate burden of proving that his termination was 

motivated by a discriminatory animus. It is on the issue of pretext that Finn focuses his 

argument.

Finn lists seventeen ways in which he argues that the District Court erred in its

treatment of the evidence in this case. Despite Finn’s arguments, we agree with the 

District Court’s conclusion that no reasonable juror could have found in Finn’s favor on 

the issue of pretext, and see no need to address each of the specific errors that he finds 

with the District Court’s opinion. We are left with a record that portrays a long period of 

subpar job performance that is documented adequately by J.B. Hunt, and a request to 

reach the conclusion that a discriminatory animus existed based on the facts that Finn had 

worked for J.B. Hunt for fourteen years before he was terminated and that another 
6

employee over the age of 55, Paul Mordecai, resigned in 2004 while working under 

Sawula. To reach such a conclusion would require rampant speculation in which this 

Court is unwilling to engage. Although Finn has provided evidence to demonstrate that 

Sawula had higher expectations for his job performance than some of his previous 

supervisors, he has introduced no evidence that would lead us to conclude that these 

expectations were motivated by his age or that his termination for poor job performance 

was motivated by a discriminatory animus. In sum, we see no ground for reversing the 

District Court’s grant of summary judgment on the basis of its treatment of the issue of 

pretext.

IV.

For the foregoing reasons, we will affirm the judgment of the District Court.