UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

COREY J. EPPS,

 Plaintiff,

v.

LIDESTRI FOODS, INC., et al.,

 Defendants.

Civil No. 11-3517 (NLH/AMD)

OPINION

APPEARANCES:

Daniel T. Silverman, Esquire

Kevin M. Costello, Esquire 

Costello & Mains, P.C. 

18000 Horizon Way 

Suite 800 

Mount Laurel, New Jersey 08054 

Attorneys for Plaintiff Corey J. Epps

Douglas Diaz, Esquire 

Archer & Greiner, P.C. 

One Centennial Square 

Haddonfield, New Jersey 08033 

Attorney for Defendant Lidestri Foods, Inc.

HILLMAN, District Judge

This matter comes before the Court by way of Defendant

Lidestri Foods, Inc.’s motion [Doc. No. 15] seeking summary

judgment pursuant to Federal Rule of Civil Procedure 56. The

Court has considered the parties’ submissions and decides this

matter pursuant to Federal Rule of Civil Procedure 78. 

For the reasons expressed below, Defendant’s motion for

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summary judgment will be granted. 

I. JURISDICTION

Plaintiff originally filed this action in the Superior Court

of New Jersey, Camden County asserting a claim for retaliatory

discharge under the New Jersey Law Against Discrimination

(“NJLAD”). Defendant Lidestri Foods, Inc. (“Lidestri”) removed

the action to this Court pursuant to 28 U.S.C. § 1441, et seq.,

asserting original jurisdiction exists over Plaintiff’s state law

claims based on diversity of citizenship.1

 The complaint also names Michael DiMaio, improperly pled 1

as Michael D’Amaio, as a Defendant. (Compl. ¶ 3.) From the

complaint and Lidestri’s Notice of Removal, it appears that

Defendant Michael DiMaio is potentially a citizen of the state of

New Jersey. (See id.; see also Notice of Removal ¶ 3(d).) 

Section 1441(b)(2) of the removal statutes prohibits removal

of civil actions “solely on the basis” of diversity jurisdiction

“if any of the parties in interest properly joined and served as

defendants is a citizen of the State in which such action is

brought.” 28 U.S.C. § 1441(b)(2). Under Section 1441(b)(2),

known as the forum defendant rule, “a state court action is not

removable based upon diversity jurisdiction if any of the

‘properly joined and served’ defendants are citizens of the forum

state.” Poznanovich v. AstraZeneca Pharmaceuticals LP, No. 11-

4001, 2011 WL 6180026, at *1 (D.N.J. Dec. 12, 2011). 

Lidestri asserts, however, that removal remains proper in

this case and is not barred by Section 1441(b)(2) because DiMaio

had not yet been served with the complaint at the time of

removal. (Notice of Removal ¶ 3(d).) A split of authority on

the issue of “whether removal by a non-forum defendant prior to

formal service on any defendant, including forum defendants, is

valid” exists among the courts in this District. See

Poznanovich, 2011 WL 6180026, at *3-5 (collecting cases). 

However, the Court need not resolve this issue because it appears

that Plaintiff does not intend to pursue any claims against

DiMaio. He was not served within 120 days of the filing of the

complaint as required by Federal Rule of Civil Procedure 4(m),

and it appears that Plaintiff has abandoned any claims asserted

against him in this action and is proceeding only against the

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The Court exercises jurisdiction in this case pursuant to 28

U.S.C. § 1332 based on complete diversity of citizenship between

the parties and an amount in controversy in excess of $75,000. 

Plaintiff Corey Epps is a citizen of the state of New Jersey. 

(Notice of Removal [Doc. No. 1] ¶ 3(a).) Lidestri is

incorporated in, and maintains its principal place of business

in, the state of New York. (Id. ¶ 3(b).) The amount in

controversy is met because the allegations contained in

Plaintiff’s complaint sufficiently demonstrate that the damages

sought are in excess of $75,000, exclusive of interest and costs.

II. BACKGROUND

The basic facts of this case are largely undisputed and

relate to Plaintiff’s involvement in an internal investigation

conducted by Lidestri into allegations of sexual harassment

brought by another Lidestri employee. On approximately February

1, 2009, Plaintiff was hired to work for Lidestri as a forklift

operator at its Pennsauken, New Jersey manufacturing facility. 

(Lidestri’s Statement of Undisputed Material Facts [Doc. No. 15-

3] (hereinafter, “Lidestri’s Statement”), ¶ 1; Pl.’s Reply to

Def.’s Statement of Undisputed Material Facts [Doc. No. 18-1]

(hereinafter, “Pl.’s Statement”), ¶ 1.) During the course of

corporate defendant, Lidestri. Accordingly, pursuant to Rule

4(m), the Court dismisses Plaintiff’s action against DiMaio and

his citizenship will not be considered for purposes of diversity

jurisdiction. 

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Plaintiff’s employment, Kathleen Jehens, the Human Resources

Manager at the Pennsauken facility, received a letter from

another forklift driver, Hosmay Jorrin, complaining of sexual

harassment by Michael Shaw, a warehouse shift manager at the

Pennsauken facility. (Lidestri’s Statement ¶¶ 3,6; Pl.’s

Statement ¶¶ 3,6.) 

As a result of Jorrin’s letter on December 13, 2010, Jehens

commenced an internal investigation into Jorrin’s allegations the

following day – December 14, 2010. (Lidestri’s Statement ¶¶ 7-8;

Pl.’s Statement ¶¶ 7-8.) Through the investigation, Jehens

learned from yet another Lidestri employee that Plaintiff might

have information regarding Jorrin’s sexual harassment allegations

against Shaw, and therefore Jehens sought to speak with

Plaintiff. (Lidestri’s Statement ¶¶ 9-10; Pl.’s Statement ¶¶ 9-

10.) On the morning of December 15, 2010, Jehens called Michael

DiMaio, another warehouse shift manager at the Pennsauken

facility, and requested that DiMaio have Plaintiff come to

Jehens’s office. (Lidestri’s Statement ¶¶ 2,11; Pl.’s Statement

2,11.) According to Jehens, at the time of that call, she did

not inform DiMaio of the reason she wanted to speak to

Plaintiff. (Lidestri’s Statement ¶ 14.) 2

Plaintiff spoke to Jehens at approximately 10:30 a.m. on

 Plaintiff admits only that Jehens testified at her 2

deposition that she did not tell DiMaio why she sought to speak

to Plaintiff. (Pl.’s Statement ¶ 14.) 

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December 15, 2010, at which time Jehens “advised Plaintiff that

she was trying to obtain information for purposes of an

investigation she was conducting regarding allegations of sexual

harassment against [warehouse shift manager Michael] Shaw.” 

(Lidestri’s Statement ¶¶ 17-18; Pl.’s Statement ¶¶ 17-18.) When

Jehens inquired as to whether Plaintiff had any information

regarding the allegations against Shaw, Plaintiff informed Jehens

“that he had witnessed Shaw make sexually oriented gestures by

rubbing his [own] nipples, heard Shaw state ‘how’s it hanging,’

and noted that Shaw ha[d] a problem with touching.” (Lidestri’s

Statement ¶¶ 19-20; Pl.’s Statement ¶¶ 19-20.) 

Later that morning, at approximately 11:44 a.m., DiMaio sent

Jehens an email “write-up” that she had previously requested

detailing that on the morning of December 15, 2010, DiMaio

observed “Plaintiff sleeping [while on his forklift] in the

tomato pasta area [of the facility], waited about fifteen seconds

to see if [Plaintiff] woke up, and then tapped Plaintiff on the

shoulder when he did not[,]” at which time Plaintiff opened his

eyes. (Lidestri’s Statement ¶ 24; Pl.’s Statement ¶ 24.) 

DiMaio’s email also noted that others present in the tomato paste

area also saw Plaintiff sleeping on the job. (Lidestri’s

Statement ¶ 26; Pl.’s Statement ¶ 26.) In a follow-up email sent

just twelve minutes later, DiMaio informed Jehens that he

observed Plaintiff sleeping at around 10:15-10:30 a.m. that

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morning and that Plaintiff was previously made aware that

sleeping on the forklift constituted grounds for termination. 

(Ex. 6 to Lidestri’s Statement [Doc. No. 15-4] 1.)

Based on DiMaio’s information, Jehens requested that DiMaio

obtain statements from the other employees present that morning. 

(Lidestri’s Statement ¶ 27; Pl.’s Statement ¶ 27.) DiMaio

complied and subsequently provided Jehens with two witness

statements. Of the two witness statements, employee Jose

Quiroz’s statement verified that he had also observed Plaintiff

sleeping on his forklift. (Lidestri’s Statement ¶ 28; Pl.’s

Statement ¶ 28.) The second employee, Jesse Flora, indicated

that he saw Plaintiff looking down at his scanner but could not

tell if Plaintiff’s eyes were closed or not. (Lidestri’s

Statement ¶ 29; Pl.’s Statement ¶ 29.) As a result of the

allegations that Plaintiff was sleeping on the job, Jehens

contacted the Corporate Human Resources Manager, Jane Oca, to see

if she approved of terminating Plaintiff’s employment based on

this infraction. (Lidestri’s Statement ¶ 30; Pl.’s Statement ¶

30.)

Later that afternoon, Oca informed Jehens that she could

proceed with terminating Plaintiff’s employment. (Lidestri’s

Statement ¶ 30; Pl.’s Statement ¶ 30.) After receiving approval

from Oca, Jehens and warehouse manager Rodger Carter met with

Plaintiff at approximately 4:30 p.m. and informed Plaintiff that

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he was being terminated for sleeping on his forklift. 

(Lidestri’s Statement ¶ 31; Pl.’s Statement ¶ 31.) Plaintiff

denied that he was sleeping and informed Jehens and Carter that

he simply had his head down. (Lidestri’s Statement ¶ 32; Pl.’s

Statement ¶ 32.)

Based on these facts, Plaintiff brings a one count complaint

asserting a claim for retaliatory discharge in violation of the

NJLAD. Plaintiff alleges that he engaged in protected activity

under the NJLAD by providing information regarding the sexual

harassment allegations against Shaw, that Plaintiff’s protected

activity was a determinative or motivating factor for his

discharge, that he was terminated as a result of providing this

information, and that Lidestri’s purported basis for terminating

Plaintiff – sleeping on the job – was merely a pretext for its

retaliatory actions. (See generally Compl. ¶¶ 5-15.) 

III. DISCUSSION

In the present motion, Lidestri seeks the entry of summary

judgment in its favor on Plaintiff’s retaliation claim under the

NJLAD. Summary judgment is appropriate where the Court is

satisfied that “‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.’” Celotex Corp. v. Catrett, 477 U.S. 317,

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322 (1986) (citing FED. R. CIV. P. 56). 

An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in the nonmoving

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the

outcome of the suit. Id. “In considering a motion for summary

judgment, a district court may not make credibility

determinations or engage in any weighing of the evidence;

instead, the nonmoving party’s evidence ‘is to be believed and

all justifiable inferences are to be drawn in his favor.’” 

Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)

(citing Anderson, 477 U.S. at 255).

Initially, the moving party bears the burden of

demonstrating the absence of a genuine issue of material fact. 

Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment

always bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those portions

of ‘the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of

material fact.” (citation omitted); see also Singletary v. Pa.

Dept. of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although

the initial burden is on the summary judgment movant to show the

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absence of a genuine issue of material fact, ‘the burden on the

moving party may be discharged by “showing” – that is, pointing

out to the district court – that there is an absence of evidence

to support the nonmoving party’s case’ when the nonmoving party

bears the ultimate burden of proof.”) (citing Celotex, 477 U.S.

at 325). 

Once the moving party has met this burden, the nonmoving

party must identify, by affidavits or otherwise, specific facts

showing that there is a genuine issue for trial. Celotex, 477

U.S. at 324. A “party opposing summary judgment may not rest

upon the mere allegations or denials of the ... pleading[s.]” 

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001)

(internal quotations omitted). For “the non-moving party[] to

prevail, [that party] must ‘make a showing sufficient to

establish the existence of [every] element essential to that

party's case, and on which that party will bear the burden of

proof at trial.’” Cooper v. Sniezek, 418 F. App’x 56, 58 (3d

Cir. 2011) (citing Celotex, 477 U.S. at 322 ). Thus, to

withstand a properly supported motion for summary judgment, the

nonmoving party must identify specific facts and affirmative

evidence that contradict those offered by the moving party. 

Anderson, 477 U.S. at 256-57.

IV. ANALYSIS

Lidestri argues that summary judgment is appropriate in this

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case because: (1) Plaintiff cannot establish a prima facie case

for retaliatory discharge under the NJLAD; and (2) even if

Plaintiff could establish a prima facie case, Plaintiff cannot

demonstrate that Lidestri’s legitimate non-retaliatory reason for

terminating Plaintiff was a pretext.

Under the NJLAD, “it is unlawful to ‘take reprisals against

any person because that person has opposed any practices or acts

forbidden under the [LAD].’” Young v. Hobart West Group, 897

A.2d 1063, 1072 (N.J. Super. Ct. App. Div. 2005) (citing N.J.

STAT. ANN. § 10:5-12d). As recognized by the New Jersey Supreme

Court, 

the protection against retaliation embodied in

the LAD is broad and pervasive, and must be seen

as necessarily designed to promote the integrity

of the underlying antidiscrimination policies of

the Act by protecting against reprisals “any

person” who has sought to protect his or her own

rights not to be discriminated against or who has

acted to support such conduct.

Quinlan v. Curtiss-Wright Corp., 8 A.3d 209, 221 (N.J. 2010)

(citing Craig v. Suburban Cablevision, Inc., 644 A.2d 112 (N.J.

Super. Ct. App. Div. 1994), aff'd, 660 A.2d 505 (1995)).

To establish a prima facie case for retaliation under the

NJLAD, a “plaintiff must demonstrate: (1) that [plaintiff]

engaged in protected activity; (2) the activity was known to the

employer; (3) plaintiff suffered an adverse employment decision;

and (4) there existed a causal link between the protected

activity and the adverse employment action.” Young, 897 A.2d at

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1072 (citing Craig, 660 A.2d at 508). After a plaintiff

satisfies its burden to establish a prima facie case, “the

defendant[] must ‘articulate a legitimate, non-retaliatory reason

for the [adverse employment] decision.” Young, 897 A.2d at 1072-

73 (citing Romano v. Brown & Williamson Tobacco Corp., 665 A.2d

1139, 1142 (N.J. Super. Ct. App. Div. 1995)). Upon defendant’s

proffer of a legitimate, non-retaliatory reason for the

challenged adverse employment decision, “the plaintiff must come

forward with evidence of a discriminatory motive of the employer,

and demonstrate that the legitimate reason was merely a pretext

for the underlying discriminatory motive.” Romano, 665 A.2d at 3

1142.

A. Protected Activity

As a threshold matter, Lidestri challenges whether

“Plaintiff even engaged in any protected conduct” under the

NJLAD. (Br. of Def. Lidestri Foods, Inc. in Supp. of its Mot.

for Summ. J. [Doc. No. 15-1] (hereinafter, “Lidestri’s Br.”), 6.) 

 Plaintiff argues that he “has fulfilled these prima facie 3

requirements such that summary judgment must be denied.” (Pl.’s

Br. in Opp’n to Def.’s Mot. for Summ. J. [Doc. No. 18] 3.) The

Court notes, however, that demonstrating only a prima facie case

of retaliation under the NJLAD is insufficient to defeat summary

judgment. As set forth more fully below, once a prima facie case

is made, a defendant may come forward with a legitimate, nonretaliatory reason for the adverse employment action. At that

time, the burden shifts back to a plaintiff to demonstrate that

the proffered reason is a pretext. If a plaintiff meets his

burden on the issue of pretext, only then, can the Court deny

summary judgment. 

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Citing to N.J. STAT. ANN. § 10:5-12(d), Lidestri contends that

Plaintiff did not oppose any practices or acts forbidden by the

NJLAD, did not file any complaints, and did not provide any

testimony or assistance in any proceedings under the Act. (Id.) 

Rather, Lidestri asserts that Plaintiff merely answered questions

posed by Lidestri’s Human Resources Manager regarding conduct

Plaintiff observed by Shaw. (Id.) Answering these questions,

Lidestri argues, does not constitute protected activity under the

NJLAD. However, Lidestri offers no authority for this

proposition, and the Court’s independent review of the case law

failed to reveal any. 

In New Jersey, “the protection against retaliation embodied

in the LAD is broad and pervasive ... protecting against

reprisals ‘any person’ ... who has acted to support” other

individuals seeking to “protect [their] own rights not to be

discriminated against[.]” Quinlan, 8 A.3d at 221. Moreover,

Lidestri fails to cite Section 10:5-12(d) in its entirety which

also prohibits reprisals “on account of [a] person having aided

or encouraged any other person in the exercise or enjoyment of,

any right granted or protected by this act.” N.J. STAT. ANN. §

10:5-12(d). Mindful of the broad and pervasive nature of the

protection this Section provides and interpreting this Section in

its entirety, the Court rejects Lidestri’s argument. The Court

finds that Plaintiff clearly engaged in protected activity under

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the NJLAD when he provided Jehens information, at her specific

request, to aide in the investigation of sexual harassment

charges against Shaw brought by another Lidestri employee –

Hosmay Jorrin. (See generally Lidestri’s Statement ¶¶ 17-20;

Pl.’s Statement ¶¶ 17-20.) Specifically, in support of Jorrin’s

allegations, Plaintiff advised Jehens that Shaw had a problem

with touching, made sexually oriented gestures and other

suggestive comments to employees. (See generally Lidestri’s

Statement ¶¶ 17-20; Pl.’s Statement ¶¶ 17-20.)

In this case, Lidestri employee Hosmay Jorrin brought

charges of sexual harassment against shift manager Michael Shaw –

conduct that obviously qualifies as Jorrin exercising and

enjoying his right to be free from discrimination, a right

protected by the NJLAD. Plaintiff’s providing of information

regarding Shaw’s conduct, specifically at the request of a human

resources manager investigating charges can fairly be considered

as Plaintiff’s attempt to “aid” or “encourage” Jorrin in

exercising and enjoying his own rights under the Act. 

Accordingly, Section 10:5-12(d) prohibited Plaintiff from being

subjected to retaliation “on account of [Plaintiff] having aided

or encouraged ... [Jorrin] in the exercise or enjoyment of,” his

right to be free from sexual harassment under the Act. Thus, the

Court concludes that Plaintiff has satisfied the first element of

his prima facie case.

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B. Activity Known to Employer & Adverse Employment Action

For purposes of this motion, the parties do not dispute that

Lidestri had knowledge, through Jehens, of Plaintiff’s comments

regarding alleged sexual harassment by Shaw, nor do they dispute

that Plaintiff’s termination qualifies as an adverse employment

action under the LAD. See Bowers v. New Jersey Judiciary,

Superior Court, 2011 WL 3794947, at *15 (N.J. Super. Ct. App.

Div. Aug. 29, 2011) (“Demotion, termination, and loss in pay or

benefits are examples of adverse employment actions for which

liability may attach under the LAD.”) Accordingly, the Court

finds that the second and third elements of Plaintiff’s prima

facie case have been met.

C. Causal Link Between Protected Activity & Adverse Action

Lidestri contends that Plaintiff cannot satisfy the

causation element of his prima facie case for three reasons: (1)

although Plaintiff directs his claim of retaliation against

DiMaio, DiMaio was not aware of Plaintiff’s purported protected

activity, i.e., the information Plaintiff provided to Jehens

regarding Shaw’s conduct; (2) Plaintiff’s contention that he was

fired for confirming Shaw’s alleged sexual harassment to Jehens

is “absurd” given that Jehens “specifically solicited such

information from Plaintiff[;]” and (3) other employees, similar

to Plaintiff, who advised Jehens of Shaw’s conduct were not

terminated. (Lidestri’s Br. 6-7) (emphasis omitted).

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Plaintiff argues that the causation “inquiry should begin

with the temporal proximity between Plaintiff’s protected conduct

and his termination.” (Pl.’s Br. in Opp’n to Def.’s Mot. for

Summ. J. [Doc. No. 18] (hereinafter, “Pl.’s Opp’n”), 5.) 

According to Plaintiff, the “facts giving rise to [his]

termination and his actual termination arose within mere hours of

his protected conduct” because Plaintiff met with Jehens at

approximately 10:30 a.m., DiMaio’s email reporting that Plaintiff

was sleeping on his forklift was sent at 11:44 a.m., and

Plaintiff was terminated approximately four to five hours after

the email was sent. (Id.) Plaintiff relies almost exclusively

on this temporal proximity to support an inference of causation. 

While Plaintiff may be correct that the causal link inquiry

begins with the temporal proximity of the events in question, the

inquiry does not end there. Under the NJLAD “the mere fact that

an adverse employment action occurs after the protected activity

will ordinarily be insufficient to satisfy the plaintiff's burden

of demonstrating a causal link between the two.” Young, 897 A.2d

at 1073. (citing Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503

(3d Cir. 1997)) (internal quotations, brackets, and citation

omitted); see also El-Sioufi v. St. Peter's Univ. Hosp., 887 A.2d

1170, 1189 (N.J. Super. Ct. App. Div. 2005) (explaining that

“mere temporal synchrony alone is insufficient to sustain

plaintiff's prima facie case” for retaliation under the NJLAD). 

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Standing alone, temporal proximity can only support an inference

of causation “where the facts of the particular case are ...

‘unusually suggestive of retaliatory motive[.]’” Young, 897 A.2d

at 1073 (citing Krouse, 126 F.3d at 503). “Where the timing

alone is not ‘unusually suggestive,’ the plaintiff must set forth

other evidence to establish the causal link.” Young, 897 A.2d at

1073 (citation omitted). Because temporal proximity alone is

inadequate to establish the required causal link, the Court

cannot scrutinize allegations of retaliation in isolation –

looking strictly at the hands of the clock or the days on the

calendar. Rather, the Court must examine these allegations in

the context within which they arose. 

Here, the temporal proximity of Plaintiff’s termination and

his protected activity arose in the following undisputed context. 

Beginning approximately one day prior to Plaintiff’s

termination, Jehens, in her role as Human Resources Manager at 4

the Pennsauken facility was actively investigating allegations of

sexual harassment against Shaw based on the complaints by Jorrin. 

(Lidestri’s Statement ¶¶ 3,6-8; Pl.’s Statement ¶¶ 3,6-8.) 

Jehens’s investigation specifically led her to seek out an

interview with Plaintiff regarding his knowledge of Shaw’s

allegedly harassing conduct. (Lidestri’s Statement ¶¶ 2, 9-11;

 Plaintiff was terminated on December 15, 2010. Jehens 4

commenced her sexual harassment investigation on December 14,

2010. 

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Pl.’s Statement ¶¶ 2, 9-11.) Jehens “advised Plaintiff that she

was trying to obtain information for purposes of an investigation

she was conducting regarding allegations of sexual harassment

against Shaw” when she interviewed him on the morning of December

15, 2010, several hours before his termination. (Lidestri’s

Statement ¶¶ 17-18; Pl.’s Statement ¶¶ 17-18.) After being

questioned by Jehens on the subject, Plaintiff provided Jehens

with several observations regarding Shaw’s alleged conduct. 

(Lidestri’s Statement ¶¶ 19-20; Pl.’s Statement ¶¶ 19-20.) 

Lidestri argues, and the Court agrees, that in light of

these undisputed facts and the context in which they arose, “it

is illogical to suggest that there is any causal connection

between the information that Human Resources specifically

solicited from Plaintiff and Plaintiff’s termination.” (Reply

Br. of Def. Lidestri Foods, Inc. in Supp. of its Mot. for Summ.

J. [Doc. No. 19] (hereinafter, “Lidestri’s Reply”), 1.) The

notion that an employer would seek out a specific employee to

provide information and assistance regarding a workplace issue

like sexual harassment; and then encourage, provoke, and

instigate the employee to engage in a form of protected activity

under the Act by providing such information, only to retaliate

against that employee for the protected activity the employer

itself prompted in the first place is nonsensical. In most

circumstances, where an employer is already aware of a workplace

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issue and taking corrective action steps to investigate or

otherwise remedy the problem prior to the time a plaintiff

engages in protected activity – i.e., complaining to the employer

about the same issue – the employer cannot fairly be said to act

in retaliation against that employee for highlighting a problem

known to the employer. See Young, 897 A.2d at 1074 (finding it

“illogical to argue that [an employee] would be fired for raising

an issue that [the employer] admittedly [was] reviewing.”) 

While the time frame of about six or seven hours between

Plaintiff’s protected activity and Plaintiff’s termination is

indeed quite minimal, the factual context of this case is not so

“unusually suggestive” of retaliatory motive to support an

inference of causation based solely on this temporal proximity. 

Moreover, Plaintiff has not set forth any other evidence

sufficient to establish a causal link between his protected

activity and his termination. Accordingly, the Court finds that

Plaintiff has failed to establish the fourth required element of

his prima facie case and Lidestri is entitled to summary

judgment.5

The Court notes the existence of a dispute between the 5

parties as to whether DiMaio allegedly observed Plaintiff

sleeping on his forklift before Plaintiff was interviewed by

Jehens or after Plaintiff had provided Jehens with information

regarding Shaw’s alleged sexual harassment. Both DiMaio and

Jehens testified that DiMaio caught Plaintiff sleeping and

informed Jehens of this offense prior to the time of Plaintiff’s

interview with Jehens. (See Tr. of DiMaio Dep., Ex. 2 to

Lidestri’s Statement 50:12-18, 95:9-13, 20-22; see also Tr. of

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D. Legitimate, Non-Retaliatory Reason & Pretext

Even assuming that Plaintiff could establish a prima facie

case of retaliation here, Lidestri has articulated a legitimate,

non-retaliatory reason for Plaintiff’s termination – that

Plaintiff was terminated for sleeping while on his forklift

during his shift. The undisputed testimony and documentary

evidence establish the following. At approximately 11:44 a.m. on

the morning of December 15, 2010, Plaintiff’s supervisor, Michael

DiMaio, sent Jehens an email “write-up” detailing that on the

same morning, DiMaio observed “Plaintiff sleeping [while on his

forklift] in the tomato pasta area [of the facility], waited

about fifteen seconds to see if [Plaintiff] woke up, and then

tapped Plaintiff on the shoulder when he did not” at which time

Plaintiff opened his eyes. (Lidestri’s Statement ¶ 24; Pl.’s

Statement ¶ 24.) In addition to the supervisor, DiMaio, at least

Jehens Dep., Ex. 3 to Lidestri’s Statement 71:23-72:13.) 

Plaintiff denies that he was sleeping and contends that he spoke

to Jehens first, before DiMaio spoke to him about sleeping on the

forklift. (Tr. of Pl.’s Dep., Ex.A to Pl.’s Opp’n 76:24-77:3.)

However, this disputed fact is not material to the

resolution of Lidestri’s motion for summary judgment because it

does not affect the outcome under the governing law. Even if a

jury credited Plaintiff’s testimony that he spoke to Jehens

before DiMaio confronted him with allegations that he was

sleeping on the job, temporal proximity between protected

activity and the adverse employment action is not sufficient

standing alone to demonstrate causation. Further, as set forth

infra, the Court finds that even if Plaintiff could demonstrate

the required causal link satisfying the elements of his prima

facie case, Plaintiff has failed to offer sufficient evidence of

pretext.

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one other employee, Jose Quiroz, saw Plaintiff sleeping on the

job on December 15, 2010. (Lidestri’s Statement ¶¶ 26, 28; 6

Pl.’s Statement ¶¶ 26, 28; see also Jose Quiroz Statement, Ex. 7

to Lidestri’s Statement [Doc. No. 15-5] 1.) 

Based on this information, Jehens contacted the Corporate

Human Resources Manager, Jane Oca, requesting approval to

terminate Plaintiff for sleeping on his forklift during his

shift, and Oca thereafter approved Plaintiff’s termination. 

(Lidestri’s Statement ¶ 30; Pl.’s Statement ¶ 30.) Subsequently,

Jehens and Carter met with Plaintiff at approximately 4:30 p.m.

and informed Plaintiff that he was being terminated for sleeping

on his forklift. (Lidestri’s Statement ¶ 31; Pl.’s Statement ¶

31.) 

In light of these undisputed facts, the Court is satisfied

that Lidestri has met its burden to articulate a legitimate, nonretaliatory reason for Plaintiff’s termination. That is,

Lidestri did not terminate Plaintiff in retaliation for providing

information in the sexual harassment investigation against Shaw,

but rather, Plaintiff was terminated after a supervisor and

another employee observed Plaintiff sleeping on his forklift

during shift the same day of his interview with Jehens. 

Jose Quiroz’s statement also indicated that he had observed 6

Plaintiff sleeping on his forklift on past occasions. (Jose

Quiroz Statement, Ex. 7 to Lidestri’s Statement [Doc. No. 15-5]

1.) 

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Accordingly, the burden is now on Plaintiff to come forward

with evidence of a discriminatory motive and to demonstrate that

Lidestri’s proffered reason was merely a pretext. Young, 897

A.2d at 1073; see also Goldie v. Jones, 2009 WL 2475342, at *4

(N.J. Super. Ct. App. Div. Aug. 14, 2009) (citing Kolb v. Burns,

727 A.2d 525, 531 (N.J. Super. Ct. App. Div. 1999) (noting that

“the plaintiff ‘has the ultimate burden of proving that the

employer's proffered reasons were a pretext for the

discriminatory action.’”). To survive a motion for summary

judgment, Plaintiff is not required to “provide direct evidence

that [the] employer acted for discriminatory reasons[.]” Kolb,

727 A.2d at 531. Plaintiff “need only point to sufficient

evidence to support an inference that the employer did not act

for its proffered non-discriminatory reasons.” Id. Plaintiff,

“as the nonmoving party, ‘must demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons for

its action that a reasonable factfinder could rationally find

them ‘unworthy of credence,’ and hence infer “that the employer

did not act for [the asserted] non-discriminatory reasons.”’” 

Id. (citing Fuentes v. Perskie, 32 F.3d 759, 765 (3rd Cir.

1994)). To defeat summary judgment, Plaintiff “must raise a

genuine issue of material fact regarding whether the employer's

proffered explanation is pretextual or whether, the ‘retaliatory

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discrimination was more likely than not a determinative factor in

the decision.’” Kolb, 727 A.2d at 531. 

In meeting his burden to demonstrate pretext, Plaintiff may

not, however, rest on mere allegations or denials of the

pleadings, and must identify, by affidavits or otherwise,

specific facts showing there is a genuine issue for trial. See

Celotex, 477 U.S. at 324; Saldana, 260 F.3d at 232. Thus, to

withstand a properly supported motion for summary judgment, the

nonmoving party must identify specific facts and affirmative

evidence that contradict those offered by the moving party. 

Anderson, 477 U.S. at 256-57.

Plaintiff has failed to meet his burden here to demonstrate

that Lidestri’s proffered reason is merely a pretext for an

underlying discriminatory motive. Plaintiff’s most discernible

attempt to demonstrate evidence of pretext comes from the

deposition testimony of Terry Mayfield, another Lidestri manager. 

Plaintiff argues that Mayfield “testified that he had seen

multiple employees sleeping on multiple occasions and that

sleeping did not constitute grounds for termination” in order to

demonstrate pretext here. (Pl.’s Opp’n 6.) However, a careful

review of Mayfield’s deposition reveals that Plaintiff has

mischaracterized this testimony, and no other meaningful evidence

of pretext has been presented to the Court. 

When asked whether he had “ever seen anyone sleeping on the

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job at LiDestri”, Mayfield indicated he had observed “[d]ifferent

employees, ... at different times” sleeping on the job “depending

on where you catch them[.]” (Tr. of Mayfield’s Dep., Ex. D to

Pl.’s Opp’n [Doc. No. 18-3] 36:6-12.) Importantly, when asked

whether falling sleeping on the job was grounds for termination,

Mayfield did not affirmatively testify that that it was not. 

Rather, Mayfield stated that he did not think it was grounds for

termination. (Id. at 37:14-17.) Moreover, while Mayfield

testified that none of the employees he witnessed sleeping on the

job were terminated, it is unclear from his testimony whether

these employees were actually reported to Human Resources for

sleeping on the job such that termination could have occurred. 

Thus there is no evidence from which a reasonable factfinder

could find that Lidestri’s proffered reason is unworthy of

credence and infer that Lidestri did not act for its asserted, 

non-discriminatory reason. 

When considered in the factual context of this particular

case, Mayfield’s testimony is inadequate to show the type of

weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions inherent in Lidestri’s legitimate reason for

termination from which a reasonable factfinder could rationally

disbelieve Lidestri and infer a discriminatory motive. The email

exchange between DiMaio, Jehens, and Oca on December 15, 2010 and

Jehens deposition testimony demonstrate that DiMaio and upper

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level Human Resource managers were aware that sleeping on the job

constituted grounds for termination and that Plaintiff had

previously been warned of the same. (Ex. 6 to Lidestri’s

Statement [Doc. No. 15-4] 1; see also Tr. of Jehens’ Dep., Ex. B

to Pl.’s Opp’n [Doc. No. 18-2] 72:6-8, 75:24-26)(“I notified

[DiMaio] that that’s [sleeping on the job is] zero tolerance” and

“It’s going to have to result in termination.”) Mayfield’s

personal uncertainty as to whether sleeping on the job warranted

termination and his failure to address the fate of any employees

caught sleeping on the job and reported to Human Resources cannot

overcome Lidestri’s proffered reason for terminating Plaintiff.

The absence of sufficient evidence of pretext for

Plaintiff’s termination is further strengthened by facts leading

to Plaintiff’s protected activity. As the Court noted supra,

Jehens specifically sought Plaintiff’s assistance during the

course of her sexual harassment investigation into Shaw’s

conduct. To suggest that Jehens specifically sought this

information from Plaintiff only to then turn around and terminate

Plaintiff for providing the same is illogical. Lidestri was

aware of the sexual harassment complaints against Shaw and was

taking steps to investigate and remedy the situation, including

interviewing Plaintiff regarding his knowledge. Jehens commenced

her investigation into Shaw’s conduct the day prior to

Plaintiff’s termination, and it was only during the course of her

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investigation, that she learned from DiMaio, and verified through

Quiroz’s statement, that Plaintiff had been sleeping on his

forklift during shift.

In these circumstances, Plaintiff has failed to meet his

burden to defeat summary judgment on the issue of pretext. 

Plaintiff has not come forward with adequate evidence raising a

genuine issue of material fact as to whether Lidestri’s proffered

reason is a pretext sufficient for a jury to infer that

retaliatory discrimination was more likely than not a

determinative factor in terminating Plaintiff’s employment. See

Kolb, 727 A.2d at 531. Accordingly, Lidestri is entitled to

summary judgment on Plaintiff’s complaint.

V. CONCLUSION

For the foregoing reasons, Defendant Lidestri Foods, Inc.’s

motion for summary judgment is granted. An Order consistent with

this Opinion will be entered.

Dated: March 25, 2013 s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

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