WILLIAM KLIMEK. Civil Action No.: 1 1-cv-01988

(CCC)

Plaintiff,

V. OPINION

SUNOCO PARTNERS LLC, ROBERT

GRAY, UNITED STEELWORKERS

LOCAL 397, JOHN DOES (1-10) and ABC

CORPS. (1-10) (fictitious names),

Defendants.

CECCHI, District Judge.

I. INTRODUCTION

This matter comes before the Court upon the Motion of Defendant United Steelworkers

Local 397 (“Local 397”) for Summary Judgment [ECF No. 46] and the Motion of Defendants

Robert Gray (“Gray”) and Sunoco Partners LLC (“Sunoco”) for Summary Judgment [ECF No.

60] (together, “Defendants”) against Plaintiff William Klimek (“Plaintiff’ or “Klimek”). Also

pending before the Court is Defendants’ Motion to Strike Plaintiffs Errata Sheet and Expert

Report [ECF No. 59]. The Court has carefully considered the submissions made in support of and

in opposition to the instant motions. No oral argument was heard pursuant to Fed. R. Civ. P. 78.

Based on the reasons that follow, Defendants’ Motions for Summary Judgment are wanted, and

Defendants’ Motion to Strike is denied as moot.
wrongful termination by Local 397. Between November 28, 2005 and August 23, 2010, Plaintiff

worked as a terminal operator for Sunoco, where he was responsible for the off-loading and loading

of oil and gas products. Before beginning his work for Sunoco, Plaintiffwas diagnosed with gout,a condition that intermittently causes pain and swelling in a person’sjoints. In June 2008, Plaintiffsuffered a severe gout attack that required him to take a medical leave from work for three months.

The first incident of a verbal dispute involving Plaintiff occurred on January 4, 2009.

Around 6:00 p.m., Plaintiffs shift ended and fellow terminal operator Jaroslaw Kwasnik’s(“Kwasnik”) shift began. Prior to leaving for the night, Plaintiff informed Kwasnik that the main

entrance gate to the terminal was malfunctioning. As Plaintiff and Kwasnik tried to fix the gate,

Kwasnik began pushing buttons. Plaintifftestified at his deposition that he told Kwasnik, “Don’t

f*king push them f*king buttons, I don’t want to lose my fingers,” and that he soon after told

Kwasnik, “I can’t fix the mother f**king gate.” (Klimek Dep., Ex. A to Kindig Cert., at 111:5-20.) Kwasnik subsequently contacted Al Gomez (“Gomez”). Terminal Manager for Sunoco

Logistics’ Piscataway Terminal, to complain about the incident, and Gomez reported the complaint

to Plaintiffs direct supervisor Rorneet Ahuja (Ahuja”). On January 9. 2009, Ahuja and Gornezmet first with Kwasnik and then separately with Klimek to discuss the incident. Although there is

‘“On a motion for summary judgment, a district court must view the thcts in the light most

favorable to the non-moving party, and must make all reasonable inferences in that party’s favor.”

418 F.3d 265, 267 (3d Cir. 2005).

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last warning.” (Jan. 9, 2009 Memo, E. H to Kindig Ccii.) Plaintiff denies having been told at

the meeting with Gomez and Ahuja that this was his first and last warning.

The second verbal dispute involving Plaintiff occurred on April 10, 2010. Plaintiff was

working in the Sunoco terminal operator office when Jose Ramos (“Ramos”), a driver for a

subcontractor of Sunoco called Island Transportation, entered the office to pick up coffee and

noticed that the lights above the coffee machine were out. Plaintiff testified that, after Ramosmade a comment about the coffee being burnt, Plaintifftold Ramos “I have no time to make fresh

coffee, I’ve got a really busy day here today.” (Klimek Dep., Ex. A to Kindig Cert., at 237:3-6.)Ramos testified that after asking Plaintiff why the lights were out, Plaintiff said to him “in a

snappy, rude way” that “Island Transportation don’t pay the electricity over here. You don’t have

to worry about the light.” (Ramos Dep., Ex. L to Kindig Cert., at 15:18-23.) Ramos furthertestified that after Ramos commented about the light Plaintiff “just snapped like that,” that he

“yelled” at him to get out ofthe office, and that Plaintifftold Ramos that he “didn’t belong there.”

(Id. at 16:1-2; 17:1-2.)

A few days later. Ramos reported the incident to Sunoco Northeast Regional Manager

Robert Gray (“Gray”), who investigated Ramos’s complaint. Gray interviewed Ramos about his

version of events, and also instructed Ahuja to interview another Island Transportation driver,

Dave Machet (“Machet”). who had witnessed the incident. On April 23. 2010. Ahuja and Gray

met with Klimek to discuss Ramos’s allegations, and Greg Turner (Turner”). another Newark

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in a loud manner. Turner testified that at the end of the meeting, he asked Gray whether there

would be an oral or written warning in an attempt to procure for Plaintiff what he believed to be

the lesser oral warning. (Turner Dep., Ex. J to Kindig Cert., at 65:18-66:18.) Gray testified that

he told Turner that there was an ongoing investigation and that Sunoco would get back to them.

(Gray Dep., Ex, Ito Kindig Cert., at 85:15-25.) However, Plaintiff claims that, at the end of themeeting, he understood the matter to be concluded and that no discipline would issue. (P1’s

Answers to Interrogatories, Ex. X to Kindig Cert., #1.)

Gray testified that, after the April 23, 2010 meeting, he met with Ramos to discuss the

Ramos/Klimek incident again; however, Ramos did not recall a second meeting when asked about

it at his deposition. On May 3, 2010, Gray contacted Human Resources Manager Michelle

Achenbach (“Achenbach”) by email regarding Ramos’s complaint and the investigation. Around

May 10, 2010, Gray spoke to Achenbach via telephone and Gray recommended that Plaintiff be

terminated for violating Sunoco policies. It is unclear whether Ahuja also participated in the phone

call, On May 13, 2010, Gray’s supervisor, John McFadden (“McFadden”) sent an email to his

superior within the company, David Chalson (“Chalson”), The email sought authority to terminate

Plaintiff on the basis that Plaintiff had engaged in two incidents of harassing and threatening

behavior, and noted that F-Iuman Resources supports the recommendation for termination. On May

14, 2010, McFadden received approval for the termination.

Gray testified that he and Achenbach intended to inform Kiimek that he was terminated on

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that Plaintiff was cleared to return to work by his doctor after three or four days out, and that

Plaintiff informed Ahuja that he would be returning to work on May 21, 2010. Gray and Ahuja

also testified that, in anticipation, Gray instructed Ahuja to arrange a meeting with Turner to

discuss the results of the investigation on Plaintiff’s return, which Ahuja did. A few hours after

Ahuja had allegedly contacted Turner, Plaintiff called Ahuja to inform him that he would not be

returning to work on Friday due to his gout, and thus the meeting did not occur as planned.

Plaintiff, however, did not testify to first telling Ahuja that he would return on May21, 2010 before

calling a second time to tell Ahuja that he would be taking a longer leave, and notes that he

informed Ahuja that he had a severe gout attack when he first took leave on May 14, 2010. It is

undisputed that after May 14, 2010, Plaintiff took a medical leave of absence pursuant to the

Family Medical Leave Act (“FMLA”), and Sunoco continued to pay Plaintiff pursuant to its

disability benefits program during his leave.

After approximately three months on leave, Plaintiff called Ahuja to inform him that he

had been cleared by his doctor to return to work, and Ahuja scheduled Plaintiffto come in to work

on August 23. 2010. Upon his arrival at work. and without prior notice. Plaintiff attended a

meeting with Ahuja, Gray, and his Local 397 representative Turner, Human Resources

representative Achenbach was also present at the meeting via telephone. Gray began the meeting

by providing all parties with a copy of a two-page letter. which Gray then read aloud. The letter

stated that. “[t]he conduct that [Klimekj presented in the incident on 1/7109 and in the recent
that “[Klimek’s] employment with Sunoco Logistics is terminated effective immediately.”

Specifically, Sunoco claims that it terminated Plaintiff because his verbal dispute with Ramos

violated the Sunoco Logistics’ Rules of Conduct, including its policies prohibiting Harassment

and Threats in the Workplace, and because he had engaged in and been warned for the previous

Rules of Conduct violation regarding his verbal dispute with Kwasnik.

After Gray read the letter, Plaintiff requested to speak privately with Turner. Plaintiff

admits that neither his gout nor his leave of absence were discussed during the meeting. Once the

meeting concluded, and before leaving company property, Plaintiff asked Turner to file a grievancechallenging his termination (the “Grievance”). Turner agreed to file the Grievance and told

Plaintiff that he would be in touch. Although Plaintiff was not a member of Local 397, he was

entitled to have Local 397 file a grievance on his behalf as a Sunoco employee. As this was to be

Turner’s first grievance filing as Shop Steward, Turner sought advice from both Local 397

President John Luminoso (“Luminoso”) and former Shop Steward Tom Caruso (“Caruso”).

Turner first called Luminoso. who told him to file a grievance for wrongful termination. Turner

also spoke to Caruso about the time frame within which to file grievances, after which point Turner

timely filed a Step 1 Grievance for “wrongful termination.” Subsequently. Turner and Plaintiff

met in person on Wilson Avenue in Newark, and Turner informed Plaintiff that the Grievance had

been filed, Turner provided Plaintiff with a copy of the Step 1 Grievance and a copy ofrelevant

portions of the Collective Bargaining Agreement between Sunoco and Local 397 (the “CBA”).

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point Ahuja informed Turner that the Step 1 Grievance was denied. Turner told Ahuja that theunion would proceed to Step 2 of the grievance process. On September 16, 2010, Ahuja returnedthe Step 1 Grievance to Turner with Sunoco’s official denial in writing. Turner once again called

Luminoso to seek advice, and Luminoso advised Turner to appeal the Grievance to Step 2. Prior

to submitting the Step 2 Grievance, Turner attempted to contact Plaintiff in order to obtain his

signature on the Step 2 Grievance, relying on a provision of the CBA which states that a Step 2appeal must be “signed by the aggrieved employee(s).” (CBA, Ex. F to Kindig Cert.) Turnerasserts that he had difficulty reaching Plaintiff after the Step 1 denial, and the parties do not dispute

that Plaintiff’s home telephone was, unbeknownst to Turner, out of service for five or six days

around this time. Further, Plaintiff did not have a cell phone or email address at which he could

be contacted.

On October 7, 2010, Plaintiff called the Newark terminal and left a message for Turner to

return his call. Turner returned the call and the two men arranged to meet that evening at a Quick

Chek convenience store in Rahway, New Jersey. At this meeting, Turner had Plaintiff sign boththe second and third steps of the Grievance form, The next morning, on October 8, 2010, Turner

submitted the Step 2 Grievance to Achenbach via fax. Although Turner claims that he believed

he was submitting the Grievance in a timely manner, the Grievance was in fact filed one day late.Achenbach informed Turner that the Grievance was untimely on October 11, 2010, and provided

an official letter denying the Grievance as untimely on October 19, 2010. Between this time,

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been untimely filed and that Local 397 would not be pursuing the Grievance any further. In

response, Plaintiff requested President Luminoso’s telephone number. Plaintiff subsequently

called the union office and left a message for Luminoso, but did not receive a return telephone

call.

On April 7, 2011, Plaintiff filed suit against Sunoco and Local 397, alleging a violation of

the New Jersey Law Against Discrimination (“LAD”) by Sunoco for wrongfully terminating

Plaintiff because of his gout, and a claim for aiding and abetting against his supervisor Gray.

Plaintiff also brought a hybrid claim under Section 301 of the Labor Management Relations Act

(the “LMRA”), alleging a breach ofthe duty of fair representation against Local 397 and a breach

of the CBA against Sunoco. Defendants have moved for summary judgment on all claims.

III. LEGAL STANDARD

Summary judgment is appropriate if the “depositions, documents, electronically stored

information, affidavits or declarations, stipulations. . . admissions, interrogatory answers, or other

materials” demonstrate that there is no genuine issue as to any material fact, and. construing all

facts and inferences in a light most favorable to the non-moving pary. the moving party is entitled

to a judgment as a matter of law.” Fed. R. Civ. P. 56(c): see also Celotex Cop, v. Catrett, 477

U.S. 317 (1986), Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).

The moving party has the initial burden of proving the absence of a genuine issue of

material fact. See Celotex, 477 U.S. at 323. Once the moving party meets this burden, the non

S
admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.”Celotex, 477 U.S. at 324; see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990) (stating

that “[t]he object of [Rule 56(e)] is not to replace conclusory allegations of the complaint.., with

conclusory allegations of an affidavit.”); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249(1986); Big Apple BMW, Inc. v. BMW ofN. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert.

denied, 507 U.S. 912 (1993) (stating that “[t]o raise a genuine issue of material fact,” the opponent

must “exceed the ‘mere scintilla’ threshold...”). A fact is “material” if a dispute about that fact

“might affect the outcome of the suit under governing [substantive] law,” and a “genuine” issue

exists as to that fact “if the evidence is such that a reasonable jury could return a verdict for the

non[-]moving party.” Anderson, 477 U.S. at 248. The Court’s role is to determine whether there

is a genuine issue for trial, not to weigh the evidence and decide the truth ofthe matter. Id. at 249.IV. NEW JERSEY LAW AGAINST DISCRIMINATION

A. Disability Discrimination Claim Against Sunoco

Plaintiff asserts that Sunoco terminated him because of his disability, thereby unlawfully

discriminating against him in violation of the LAD. The LAD provides in relevant part:

It shall be an unlawful employment practice, or, as the case may be, an unlawful

discrimination:

a. For an employer, because of. . . disability.. . to discharge, or require to retire, unless

justified by lawful considerations other than age, from employment such individual or

to discriminate against such individual in compensation or in terms, conditions orprivileges of employment...

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acknowledges the rights of employers to manage their businesses as they see fit.” Viscik v. Fowler

Equipment Co.. 800 A.2d 826, 833 (N.J. 2002). In evaluating a claim of discrimination under the

LAD, New Jersey courts utilize the same burdens of proof and persuasion as those under the

federal anti-discrimination laws, and employ the familiar three-step burden-shifting framework of

McDonnell Douglas. Id. at 833; A.D.P. v. ExxonMobil Research & Eng’g Co., 54 A.3d 813, 821-

822 (N.J. Super. Ct. App. Div. 2012); Thurston v. Cherry Hill Triplex, 941 F. Supp. 2d 520, 535

(D.N.J. 2008); Swider v. Ha-Lo Indus., Inc., 134 F. Supp. 2d 607, 621 (D.N.J. 2001). Thus:

[T]he plaintiff first ‘must carry the initial burden. . . of establishing a prima facie case of

[unlawful] discrimination.’ .. . Ifthe plaintiff succeeds, the burden ofproduction shifts to

the defendant to ‘articulate some legitimate, nondiscriminatory reason for the employee’s

rejection.’ . . . Once the employer answers its relatively light burden by articulating alegitimate reason for the unfavorable employment decision, the burden of production

rebounds to the plaintiff, who must now show by a preponderance ofthe evidence that the

employer’s explanation is pretextual (thus meeting the plaintiffs burden of persuasion).

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (quoting McDonnell Douglas Corp. v. Green,

411 U.S. 792. 802 (1973)).

The parties concede. for the purposes of the Summary Judgment Motions only, that

Plaintiff has established a prima Jacie case of discrimination, and that Defendant Sunoco has met

its “relatively light” burden of providing a legitimate, non-discriminatory reason for Plaintiffs

discharge (that Plaintiff was terminated for violating the Sunoco Rules of Conduct, specifically its

Equal Employment Opportunity (“EEO”) policies against Harassment and Threats in the

Workplace, when he engaged in two verbal disputes with a coworker and an employee of a third

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the employer’s reason was false; he or she must also demonstrate that the employer was motivatedby discriminatory intent.” Viscik, 800 A.2d 833. However, given “the difficulty of proving

discriminatory intent through direct evidence, which is often unavailable,” a plaintiff may prove

her case of discrimination through circumstantial evidence. Zive v. Stanley Roberts, Inc., 867

A.2d 1133, 1138 (N.J. 2005). Thus, to defeat summary judgment, 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 reasonwas more likely than not a motivating or determinative cause of the employer’s action.” Fuentes,

32 F.3d at 764. Under the first prong:

[T]he plaintiff cannot simply show that the employer’s decision was wrong or mistaken,since the factual dispute at issue is whether discriminatory animus motivated the employer,

not whether the employer is wise, shrewd, prudent, or competent. Rather, the nonmoving

plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for its

actions that a reasonable factfinder could rationally find them “unworthy of credence,” and

hence infer “that the employer did not act for [the assertedi non-discriminatory reasons.”

Id. at 765 (internal citations and quotation marks omitted).

In his opposition to the Motions for Summary Judgment. Plaintiff points to several facts

(albeit without any citations to the record) that he believes cast sufficient doubt on Sunoco ‘5

articulated reason for his discharge. First, Plaintiff notes that Sunoco and Gray had knowledge of

Klimek’s three month leave of absence for gout in 2008 and of his continued difficulties with gout

since that time. Specifically, Plaintiff asserts that Klimek’s direct supervisor, Ahuja, and Sunoco’s

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Plaintiffs gout several weeks after Plaintiff took his second leave of absence in 2010 (and after

the decision to terminate Plaintiff had already been made), Plaintifftestified that Gray was in fact

aware of his condition in mid/late April 2010 (after the Ramos incident but prior to when the

decision to terminate him was made). Plaintiffs support for his claim that Gray knew of his gout

prior to his leave of absence in May 2010 is the fact that Gray brought his two sons to the terminal

in mid/late April and, upon introducing them to Plaintiff, “told his sons to be careful, Billy’s right

wrist is swollen and blown up, he has the gout.” (Klimek Dep., Ex. A to Kindig Cert., at 282:6-

283:11.) Plaintiff asserts that it is therefore “disingenuous” for Sunoco/Gray to argue that the

decision to terminate Plaintiff was made prior to his second leave for gout because, “even though

it may be true that Gray’s decision to request termination and Achenbach’s agreement thereto was

made before Klimek began his second medical leave,” Gray, Ahuja, and Ahenbach were aware of

his previous leave for gout in 2008 and ofthe flare up of his symptoms prior to his taking leave in

2010. (P1’s Br. at 52.) Plaintiff concludes that “a reasonable finder of fact could believe that the

newly appointed Regional Manager Gray did not wish to be saddled with an employee with a

chronic medical disability which had previously resulted in a three month absence.” (P1’s Br. at

51-52.)

Even accepting as true Plaintiffs claim that Gray was aware of his gout prior to his leave

of absence in May 2010 and viewing all inferences in Plaintiffs favor (as we must do on summary

judient), the mere knowledge of Ahua. Achenbach. and Gray of Plaintiffs gout prior to his

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only in cases where the employer is completely unaware of the plaintiffs disability”). Plaintiffs

argument amounts to no more than mere speculation. Indeed, when asked on what facts he bases

his claim of disability discrimination, Plaintiffreplied:

Facts is because over making a fresh pot of coffee, I felt that wasn’t a severe offense, and

in my mind I was out in 2008 with a gout attack and now 2010 1 had the gout attack. Ithink Sunoco was looking at it and Bob Gray that I’m going to have a problem with this

and I’m going to be out maybe in the future again and it’s going to cost them money in

overtime to cover my shifts.

(Klimek Dep., Ex. A to Kindig Cert., 165:8-17.) Mere speculation is insufficient to defeat a motion

for summary judgment. $çc Fletcher v. Lucent Techs., Inc., 207 Fed. Appx. 135, 140 (3d Cir.

2006) (affirming grant of summary judgment in Title VII gender discrimination suit and noting

that plaintiffs arguments regarding the timing ofher employer’s rolling layoffs and new voluntary

retirement plan were “unsupported and speculative”).

Plaintiffs second argument is “that the unremarkable dispute between Klimek and Ramos

could justify the ultimate penalty of tennination simply strains credulity.” (P1’s Br. at 53.)

Plaintiff asserts that “the evidence provided by the participants and the witnesses demonstrate the

event to be a few minutes of loud talking or veiling unaccompanied by any cursing. threats or

intimidation, Klimek’s alleged behavior, even upon acceptance of Ramos’ version, cannot justify

the penalty of termination under Sunoco’s own Rules of Conduct.” (P1’s Br. at 55.) Plaintiff

continues on to explain that, at most, his conduct constituted a Rules of Conduct Schedule B(3)

violation for the use of abusive and threatening language. rather than a Schedule A(16) offense for

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states:

B. Violations of any of the following are considered a serious misconduct. The firstviolation of any of these regulations would result, at minimum, in a written warning. The

second violation will subject an employee to suspension without pay for up to three days.

Any further violations can result in discharge.

(The Rules of Conduct, Ex. D to Kindig Cert.) Thus, Plaintiff concludes that “A finder of fact

could easily conclude Sunoco and Gray’s characterization ofthe Klimek/Ramos light bulb spat as

an EEO violation instead of a Rule ofConduct B(3) issue to be implausible or inconsistent.” (P1’s

Br. at 56.)

This argument, however, is also insufficient to establish pretext. As noted above, it is not

the province of the Court to consider whether Sunoco’s decision was “wrong or mistaken.”

Fuentes, 32 F.3d at 765. Further, and importantly, Plaintiff does not dispute the material facts on

which Sunoco claims that it based its decision to terminate him. Although Plaintiff asserts that he

merely spoke to Ramos “sternly,” (Klimek Dep., Ex, A to Kindig Cert., at 140:20-21), whereas

Ramos testified that Plaintiff “yell[edj” at him, (Ramos Dep.. Ex. L to Kindig Cert.. at 16:1 1.

I ‘7:1). Plaintiff does not provide reason to doubt that Ramos was upset after the incident, nor does

he question whether Ramos in fact reported the incident to Plaintiff’s supervisors. In addition,

apart from whether or not he received an official “warning,” Plaintiff does not dispute the

underlying facts of the first verbal dispute that he had with Kwasnik. including the fact that he

cursed at Kwasnik, that Kwasnik reported the incident, and that Plaintiff was told by his

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Emmett may characterize his conversation with Crabill differently than Crabill does, he

offers no reason to doubt that Crabill was upset after the conversation or that Crabill

reported the incident to Emmett’s supervisors. Indeed. Emmett acknowledges that, after

the incident, Zaremba asked him to call Crabill and “kind of smooth things over.”

Thus, Emmett provides no reason to doubt that, at the time Miller made the decision to

terminate his employment, Miller believed that Emmett had spoken to Crabill in anunprofessional manner.

528 Fed. Appx. 257, 261 (3d Cir. 2013). Similarly, while Plaintiff may characterize the incident

as an “unremarkable dispute,” Plaintiffprovides little reason to doubt that Gray and Sunoco relied

on Ramos’s version of events—that Plaintiff yelled at Ramos in a disrespectful and upsetting

manner—in reaching their decision to terminate him. See Fuentes, 32 F.3d at 767-77.

Additionally, even accepting that Plaintiffs conduct could be characterized as at most a

Schedule B(3) violation for abusive and threatening behavior and not a Schedule A violation of

the Harassment Policy, and that the company therefore did not adhere to its policy to provide

progressive discipline rather than immediate termination, this does not provide sufficient evidence

of pretext. Plaintiff has not “produced evidence that this disciplinary policy was mandatory or

rigorously followed, so little can be inferred from the company’s decision not to adhere to the

policy in this instance.” Emmett, 528 Fed .Appx. at 262. In fact. the Rules ofConduct specifically

states that “The Company reserves the right to impose penalties different than those listed herein,

depending upon the nature of the circumstances involved in each individual case.” (Rules of

Conduct, Ex. D to Kindig Cert.) A mere failure to strictly comply with its non-mandatory

disciplinary policy does not sufficiently support the inference that Sunoco tired Plaintiff because

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operators at Sunoco’s Newark facility where the employees “received little or no discipline for

misconduct of a more serious nature than that attributed to Klimek.” (P1’s Br. at 56.) The conduct

of those other employees constituted a falsified bill of lading, a red dye spill that cost Sunoco

$8,000 to clean, two instances oftardiness plus a work performance deficiency, and an alleged fall

on the pipelines at the terminal as the result ofwalking on pipes as opposed to catwalks as required.

Plaintiff notes that each of these four employees received little to no discipline even though hecharacterizes their conduct as constituting Schedule A violations, which would subject them to the

possibility of termination.

The alleged disparity between Plaintiff’s discipline and the discipline received by these

four other employees, however, is irrelevant. It is undisputed that a plaintiffmay establish pretext

by showing “that the employer treated other, similarly situated persons not of his protected classmore favorably, or that the employer has discriminated against other members of his protected

class or other categories of protected persons.” Fuentes, 32 F.3d at 765. The Third Circuit has

explained in the context of a claim of unlawful discrimination based on race, gender, and age that:

While “similarly situated” does not mean identically situated, the plaintiff must nevertheless be similar in all relevant respects. Which factors are relevant is determined

by the context of each case, hut often includes a showing that the two employees dealt with

the same supervisor, were subject to the same standards, and had engaged in similar

conduct without such differentiating or mitigating circumstances as would distinguish their

conduct or the employer’s treatment of them.

335 Fed. Appx. 220. 222-23 (3d Cir. 2009) (internal quotations and

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and threatening behavior during two verbal disputes, one with a coworker and one with a thirdparty contractor’s employee. None of the conduct of the other four terminal operators involved

any form of aggressive behavior directed at another person on Sunoco grounds. Thus, as these

four employees are not relevant comparators, this evidence is insufficient to enable a factfinder “to

reasonably conclude that an illegitimate factor more likely than not was a motivating or

7 determinative cause ofthe adverse employment decision. Fuentes, 32 F.id at 765.

Plaintiff’s final attempts to establish evidence of pretext relate to Gray’s credibility as to

the scope and findings of his investigation. First, Plaintiff cites to what he characterizes as

inconsistent deposition testimony to establish that Gray’s investigation was not as extensive as

Gray makes out. Most of these supposed inconsistencies, however, amount to little more than

2 Plaintiff also attempts to introduce evidence that Sunoco discriminated against a

member of his protected class because Kwasnik. who had fractured a rib in a fall that

allegedly occurred on company premises, initially requested to use sick leave but later

sent an email to Ahuja requesting to use vacation days instead. Plaintiff speculates thatGray instructed Kwasnik to request this change, and thus argues that this “bespeaks a

hostility to employee’s utilization of sick leave” and “raises an inference that Gray would

disfavor an employee such as Klimek who had previously utilized extended sick leave

and suffered from a chronic disability.” (P1’s Br. at 61.) There is insufficient evidence,

however, that Gray did in fact direct Kwasnik to rescind his request for sick leave and to

use vacation time instead, and the deposition testimony Plaintiffreferences does not

support that conclusion. Furthermore, Plaintiff has not identified Kwasnik as a member

of his protected class, as a rib fracture does not necessarily mean that Kwasnik is or was

disabled. such that Sunoco’s treatment of Kwasnik would evidence “discriminat{ion]against other members of his protected class.” Fuentes. 32 F.3d at 765.
But I did — I did feel uncomfortable, the way he approached me, though.” (Ramos Dep., Ex. L to

Kindig Cert., at 31:14-18.) While there may be some distinction between feeling “threatened” and

feeling “uncomfortable,” Ramos testified that he merely did not remember whether he told Gray

that he felt threatened, and certainly testified that he at the very least felt uncomfortable and upset

by Plaintiffs actions. As another example, Plaintiff argues that Gray “misrepresented the results

of Ahuja’s interview of a purported witness to the incident, Island Transportation truck driver

David Machet” (P1’s Br. at 63) because, while Gray testified that Ahuja reported that Machet

provided a “consistent” version of events to Ramos, Gray didn’t mention that Ahuja also told him

that Machet advised that “Bill had spoken to [Ramos] in a loud manner.” (Ahuja Dep., Ex. G to

Kindig Cert., at 92:23-24.) Plaintiff argues that this is crucial because Ramos reported that Plaintiff

yelled at him whereas Plaintiff only reported speaking in a loud manner. However, Plaintiff

ignores that Ahuja himself testified that “I just did call Bob [Gray] up and tell him I did speak to

Mr. Machet, and he concurred with what Jose was saying. . .“ (Ahuja Dep. Ex. G to Kindig Cert,

at 93:7-9.) It is questionable whether the above can even be characterized as inconsistencies.

The remainder of Plaintiffs points in relation to Gray’s deposition testimony amount to

little more than immaterial facts about the investigation into Plaintiffs conduct. Plaintiff points

out that while Gra recounted having conducted follow up interviews with Ramos, Klimek. and

Ahuja. these three individuals did not recall follow up meetings with Gray in their depositions.

These alleged inconsistencies in witness testimony seem to stem from a less than complete

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the termination. . . the inconsistencies and confusion within the testimony. . . seem to stem only

from their inability to recall events that occurred over four years ago”); Hodczak v. Latrobe

Specialty Steel Co., 761 F, Supp. 2d 261, 277 (W.D. Pa. 2010) (granting summary judgment to

employer in age discrimination case in which immaterial inconsistencies in deposition testimony

did not amount to sufficient evidence of pretext). Furthermore, even assuming that Gray did not

conduct follow up interviews, it is not the province of the Court to consider whether Gray should

have conducted a more thorough investigation. Bentley, 2009 WL 211653, at *9 (noting that “even

if [the employer’s] entire investigation was inadequate, that fact alone would not be sufficient

evidence to raise an inference of pretext”). Thus, Plaintiff has at most cast doubt on the extent of

the investigation, which is insufficient to establish pretext; he has not provided any reason to doubtthe reason behind Sunoco ‘s decision to terminate Plaintiff or to raise an inference that the decision

was motivated by Plaintiff’s gout.

Finally, Plaintiff argues that “Gray’s May 3, 2010 email to Achenbach, McFadden and

Ahuja providing the results of his investigation is rife with misinformation and outright falsities.”

(P1’s Br. at 66.) However. Plaintiff offers no evidence. apart from his previous arguments

regarding the allegedly inconsistent witness testimony and his own denial of the events, that this

email does in fact contain inconsistencies. In short. Plaintiff has failed to offer sufficient evidence

from which a reasonable factfinder could conclude that Sunoco’s proffered legitimate reasons for

terminating him are pretextual. The Court finds that there are no material facts in dispute and will

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the LAD. a plaintiff must show that 1) the party whom the defendant aided performed a wrongfulact that caused an injury, 2) the defendant was “generally aware of his role as part of an overallillegal or tortuous activity at the time that he provide[d] the assistance”, and 3) the defendant

knowingly and substantially assisted the principal violation. Photis v. Sears Holding Cop., Civ.Action No. 11-cv-6799, 2013 WL 3872519, at *10 (D.N.J. July 25, 2013) (internal quotations andcitations omitted). An individual may only be held liable under the LAD when the employer may

be held liable under the statute. Id. Here, the Court has granted summary judgment to Sunoco on

the LAD claim. Thus, the aiding and abetting claim against Gray fails as well.

V. HYBRID CLAIM UNDER 301 OF THE LABOR MANAGEMENT RELATIONSACT

Plaintiff brings a “hybrid” claim pursuant to § 301 of the Labor Management Relations

Act, 29 U.S.C. § 185, asserting that 1) Local 397 breached its duty of fair representation and that

2) Sunoco breached the collective bargaining agreement for terminating Plaintiff without just

cause. “A union’s breach of the duty offair representation is a ‘necessary condition precedent’ toa Section 301 claim against an employer for breach of a collective bargaining agreement.” Roe v,Diamond, 519 Fed, Appx. 752, 757 (3d Cir, 2013) (quoting Aibri ty. Virtue, 273 F.3d 564, 576(3d Cir. 2001). Further, these two claims are “inextricably interdependent,” meaning that “[t]o

prevail against either the company or the Union, ...[employee-plaintiffs] must not only show thattheir discharge was contrary to the contract but must also carry the burden of demonstrating a

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A. Breach of Duty of Fair Representation

Plaintiffmakes two distinct arguments with respect to his claim for a breach of duty of fair

representation: 1) that Local 397’s handling ofhis Grievance was arbitrary, and 2) that Local 397’s

conduct in the processing of his Grievance was discriminatory because it was based on his status

as a non-union employee. In response, Defendants argue that Local 3 97’s conduct in processing

Plaintiff’s Grievance was at most negligent, which is insufficient to establish a claim for breach of

the duty of fair representation. Further, Defendants argue that Plaintiff has offered no facts todemonstrate any hostility on the part of the union on the basis of Plaintiff’s non-union status, and

thus that he fails to establish discriminatory conduct on the part of Local 397.

To establish a claim for a union’s breach ofthe duty offair representation, a plaintiff must

produce sufficient facts from which a jury could reasonably conclude that the union’s conduct was

arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190 (1967). Again, Plaintiffcontends that Local 397’s conduct was arbitrary and/or discriminatory. 3(See P1’s Br. at 73-91.)

Thus. the Court will anal ze those two prongs in turn.

Although Plaintifffocuses on whether Local 397’s conduct was arbitrary or

discriminatory, the Court notes that the facts provided by Plaintiff would not support a

claim for bad faith conduct either. A finding of bad faith “requires ‘substantial evidence

of fraud, deceitful action or dishonest conduct,” none of which has been presented here.Wilson v. Am. Postal Workers Union, 433 F. Supp. 2d 444, 449 (D. Del. 2006) (quoting

jpevy.4oore, 375 U.S. 335, 348 (1964)).

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in its decision whether and how to pursue an employee’s grievance against an employer.”

Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 567-68 (1990).

Furthermore, “proof that the union may have acted negligently or exercised poor judgment is not

enough to support a claim of fair representation.” Bazarte v, United Transp. Union, 429 F.2d 868,

872 (3d Cir. 1970). Thus, an employee is “subject to the union’s discretionary power to settle or

even to abandon a grievance, as long as it does not act arbitrarily.” Id. at 872.

Plaintiff argues that Local 397, through Turner, arbitrarily and perfunctorily processed his

Grievance, both in filing the Step 2 Grievance one day past the filing deadline, and in failing to

pursue the Grievance beyond Step 2, allegedly without any investigation or analysis. Plaintiff

notes that Turner had 15 business days to contact Plaintiff to obtain his signature and to file the

Step 2 Grievance after discovering that it was denied at Step 1. Despite this, Plaintiff argues that

Turner did not meet with Plaintiff until the day before the Grievance was due, and did not forward

the Grievance to Human Resources until the next morning (making it one day late), when he could

have submitted the perfected Grievance the same day that it was signed.

Plaintiff further argues that after the Grievance was denied as untimely at Step 2, Local

397 President Luminoso and Turner failed to take any action on Plaintiffs behalf, despite the fact

that Turner infotmed Luminoso that he disputed Sunoco’s determination that the Grievance was

untimely. According to Plaintiffs interpretation of the CBA, the CBA would allow an arbitrator

to consider whether the Grievance was timely filed. Additionally. Plaintiff notes that Luminoso
when asked in his deposition whether the Step 3 Grievance should have been filed. Luminoso’s

initial response was that he “didn’t have enough information to go on.” (Luminoso Dep., Ex. Q to

Tykulsker Cert., at 69:16-19.) Finally, Plaintiff points out that Local 397’s decision to stop

processing the Grievance allegedly violated its own internal grievance procedures, which require

that “A majority consensus of all the shop stewards/committee must be obtained prior to any

grievance being withdrawn” and that “Any grievance involving the discharge/termination of

employment of any member of any bargaining unit shall have the approval of the local union

executive board prior to being withdrawn.” (Local 6-397 Policy on Grievances, Ex. M to Nulty

Cert.)

In response, Defendants argue that there was a rational explanation related to the CBA for

each action that Local 397 took with respect to Plaintiffs Grievance. First, Turner reasonably

determined that Klimek’s signature was needed on the grievance form to process it to Step 2 based

on the language of the CBA. Turner attempted to contact Plaintiff multiple times to obtain his

signature, but was unable to reach him for several days, in part because Plaintiffs phone was not

working. When Turner finally did manage to speak to Plaintiff, he met with him promptly and

It should be noted that Luminoso was immediately thereafter asked “In retrospect, do

you think it would have been a good idea to gather the information to determine whether

or not step three should have been filed?” and that he responded “There was enoughinformation, It was not done in a timely manner.” (Luminoso Dep., Ex. Q to Tykuisker Cert.. at 69:20-25.)
Local 397 next argues that it rationally decided not to process the Grievance after Step 2

because the submission was untimely, noting that Luminoso testified to having informed Turner

not to move the Grievance to Step 3 because it was untimely. Local 397 argues that “[w]hatever

the merits of the Union’s decisions that it needed Plaintiff’s signature on the grievance form and

that the grievance should not be further pursued because ofits untimeliness, these decisions were

rationally based on the Union’s understanding ofthe CBA.” (Local 397’s Reply Br. at 5.) Local

397 explains that, because Article V of the CBA states that an arbitrator “shall have authority only

to consider grievances which have been properly carried through all the steps of the grievance

procedure,” (CBA, Ex. F to Kindig Cert.), and because the untimely filing meant that Plaintiff’s

Grievance was not properly carried through the grievance procedure, Gray and Luminoso

determined that the Grievance could no longer be pursued. Given the “highly deferential” standard

articulated in O’Neill, Local 397 asserts that the Court should not replace Local 397’s

interpretation ofthe CBA with its own.

Plaintiff argues that, while the Third Circuits framework for analyzing arbitrary union

actions remains unclear, especially when the union’s conduct is of a ministerial or administrative

nature, other circuits have established that the failure to perform an administrative act is by itself

sufficient to satisfy the arbitrary prong. In Beck v. United Food & Commercial Workers Union,

Local 99. the Ninth Circuit drew a distinction between “intentional conduct by a union exercising

its judgment” and “actions or omissions that are unintentional, irrational or wholly inexplicable.

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injures the union member.” Id. At 880. Thus, the Ninth Circuit concluded that “[w]here a union

has agreed to file a grievance but fails to file the grievance in a timely fashion, the union’s error isproperly characterized as a ‘failure to perform a ministerial act required to carry out [its]

decision.” Id. at 881 (quoting Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1273 (9th Cir.

1983)). Similarly, the Sixth Circuit in Vend v. International Union of Operating Engineers, Local

18 noted that “[a] union acts arbitrarily by failing to take a basic and required step. . . . Timely

filing is both basic and required.” 137 F.3d 420,426 (6th Cir. 1998) (citations omitted). The Court

went on to hold that, unless there is reasonable justification or excuse, an untimely filingconstitutes arbitrary and perfunctory conduct, violating the duty of fair representation. Id.

As Defendants point out, however, the Third Circuit has not drawn such a distinction

between procedural and non-procedural acts. In fact, in Ahmad v. United Parcel Service, a case

that was decided after both Beck and Vend, the Third Circuit found a failure to timely file a

grievance appeal due to a clerical error insufficient to establish arbitrary conduct on the part oftheunion. 281 Fed. Appx. 102. 105 (3d Cir. 2008) (“[Plaintiffi argues that the Union breached its

duty offair representation due to [his Union Business Agent’s] failure to timely file the Step Three

appeal. Flowever. this Court has stated that mere negligence is not enough to support a claim of

unfair representation.”), See also Wilson, 433 F. Supp. at 449 (holding that “[t]he Union’s failure

to timely file the grievance can amount to no more than mere negligence, considering the two

copies of the Notice of Removal sent to Plaintiff on different dates and the apparent confusion as

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court determined at a bench trial that the union acted both discriminatorily and in bad faith, and

that the union acted “without any rational basis” in failing to file an earlier grievance on behalf of

the plaintiff. Beck v. United Food & Commercial Workers Union, Local 99, No. CIV 02-0495-

PCT-EHC, 2005 U.S. Dist. LEXIS 45906, at *19.20 (D. Ariz. July 12, 2005). In Vend, the court

found that the union lacked a “reasonable excuse” for filing its request for arbitration one day late

because the only excuse offered by the union for its untimely filing was that its business

representative had gone on vacation. 137 F. 3d at 426. In this case, by contrast, Turner admits

that the late filing was the result of a mistaken calculation on his part as to the number of days

within which he was able to file the Step 2 Grievance. It was reasonable for Turner to conclude

that he needed Plaintiff”s signature prior to submitting the Step 2 Grievance, given that the CBA

requires a written grievance to be signed in order to be considered. Further, Plaintiffdoes not denythat his phone was out of order for several days such that Turner would have been unable to get in

touch with him during that time, or that Turner did not know that Klimek’s phone was out of

service, Turner testified that he attempted to contact Plaintiff multiple times prior to the date of

the submission of the Grievance on October 8. 2010. Turner submitted the Grievance the very

next morning after meeting Plaintiff Thus, his conduct with respect to the untimely filing of theGrievance. although a mistake. constitutes at most negligence.

Furthermore. Plaintiffs arguments with respect to Local 397’s decision not to pursue the

Grievance past Step 2 also must fail. An employee does not have “an absolute right to force his

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not pursue the Grievance past Step 2 because Sunoco, through Achenbach, had informed them that

the Grievance was untimely, and because the CBA states that “the arbitrator shall have authority

only to consider grievances which have been properly carried through all the steps ofthe grievance

procedure.” (CBA, Ex. F to Kindig Ccii.) The parties do not dispute that the Grievance was in

fact untimely. Even though Turner believed that he had filed the Grievance in a timely manner at

the time that it was denied, he testified that he did not believe that he could appeal the Grievance

to Step 3 because Achenbach and thus Sunoco had determined that it was untimely. Luminoso

similarly testified that the Grievance was not pursued beyond Step 2 because it was untimely.

Although it is unclear whether Local 397 in fact could have pursued the Grievance any further,

and although Turner and Luminoso perhaps could have done more to investigate the timeliness

issue, their determination at the time of the Step 2 denial that they could not pursue it further was

not so “irrational” as to rise to the level of arbitrary conduct, constituting a breach of the duty of

fair representation. As the Third Circuit has noted, “[e]ven a union decision that is ultimately

wrong is not a breach of its fair representation duty- unless that decision is so unreasonable that it

is ‘without rational basis or explanation.’’ Raczkowski v. Empire Kosher Poultry. 185 Fed. Appx.

117, 118 (3d Cir. 2006) (quoting Mar uezv, Sçeen Actors ild,jnc,, 525 U.S. 33,46 (1998)).

Plaintiffs argument regarding Local 397’s alleged failure to follow its own internal

grievance procedures also must fail. The provisions ofthe Local 397 policy to which

Plaintiff cites refer to “withdrawal” of a grievance. Here. Local 397 chose not to further

-‘7
exists as to whether Local 397’s conduct in failing to process Plaintiffs Grievance was based on

Plaintiffs status as a non-dues-paying employee, thus constituting “discriminatory” conduct in

violation ofthe duty of unfair representation. Unions are under “a statutory obligation to serve theinterests of all members without hostility or discrimination toward any.” O’Neill, 499 U.S. at 76

(quoting Vaca, 386 U.S. at 177). A union acts in a discriminatory manner when it treats membersof a bargaining unit differently “because of an irrelevant and invidious distinction.” Peterson v.

Lehigh Valley Dist. Council, 676 F.2d 81, 87 (3d. Cir. 1982) (quotations and citations omitted).

Non-union membership status has been found to constitute a relevant characteristic on which tobase a claim for discrimination in breach ofthe duty offair representation. See Thompson v. Bhd.

of Sleeping Car Porters, 316 F.2d 191, 199 (4th Cir. 1963); Castell v. Douglas Aircraft Co., 752

F.2d 1480, 1483 (9th Cir. 1985).

In support of his claim of discrimination, Plaintifffirst argues that the union employees at

the Newark Sunoco terminal were aware of Plaintiffs negative attitude towards union

membership. He notes that when terminal operator and former Local 397 Shop Steward Caruso

approached Plaintiff to ask whether he would like to join the union. Plaintiff declined, explaining

that his father was a long-time union worker who lost his pension because “the union stole the

pursue the Grievance after it was denied at Step 3, rather than to withdraw a pending

grievance. and thus its actions do not appear to have violated the Local 397 Policy onGrievances.
grievance process. First, Luminoso testified that when he advised Turner during a telephone call

that a grievance for unjust termination needed to be filed on Plaintiff’s behalfi Turner “said the

man’s a nonunion member, he doesn’t pay dues.” (Luminoso Dep., Ex. Q to Tykulsker Cert., at

22:10-11.) Second, Plaintiff points out that in the minutes from a September 7, 2010 Local 397

meeting where Plaintiffs Grievance was discussed, there is a reference to Plaintiff as a “nonunion

man” next to his name. When Luminoso was asked why the minutes noted that Plaintiff was a

nonunion man, Luminoso replied that “[t]hat may have been what Greg Turner said at the time,

that a nonunion member was terminated.” (Id. at 37:24-38:1.)

The Court finds that no reasonable jury could conclude that Local 397 acted in a

discriminatory manner towards Plaintiff in the processing of his Grievance based on the evidence

that Plaintiff has adduced. The fact that Caruso was “aware” of Plaintiff’s negative attitude

towards union membership is irrelevant. First, the conversation regarding union membership

between Caruso and Plaintiff took place soon after Plaintiff began his employment with Sunoco,

more than four years prior to the processing of Plaintiffs Grievance. Second, Caruso was not the

shop steward Plaintiffs union representative during the processing of the Grievance, and he

merely provided peripheral advice to Turner as to how to process the Grievance. Third, Caruso’s

reply to Plaintiffs comments does not demonstrate hostility, as Plaintiff testified that Caruso’s

response was “Not Much. Maybe a face.” (Klimek Dep., Ex. A to Kindig Cert., 102:8.) Plaintiff

also commented that “It wasn’t a big conversation.” (Id. at 102:14.) With regards to the two

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grievance, it is clear that Turner was inquiring as to his responsibilities with respect to non-union

members. Luminoso testified that when Turner mentioned that Plaintiffwas a non-union member,

it was in order to inquire as to his obligations, and Luminoso informed Turner in response that “we

still have to file a grievance.” (Luminoso Dep., Ex. Q to Tykulsker Cert,, at 22:12.)6

The second mention of Plaintiff’s non-union status by Turner at the Local 397 meeting

does no more to allow for an inference of discrimination. Plaintiff has provided no evidence that

Local 397 treated him any differently because of his non-union status, or that Turner, Luminoso,

or the Union expressed any hostility towards him. In fact, Plaintiff testified that prior to his

discharge and the processing of his Grievance, he had no problems with the union. (Klimek Dep.,

Ex. A to Kindig Cert., at 234:2-3; 256:22-23.) Furthermore, Plaintiff testified that when he first

spoke to Turner about filing a grievance on his behalf, Turner “shook [his] hand. He said he takes

6 Luminoso’s further deposition testimony explaining Turner’s mentioning of Plaintiff’s

non-union status belies any inference of hostility:

Q: When [Turner] told you he was a nonunion member. was he telling you that inthe context of’ “what are our obligations to him?”

A: Right.

Q: He didn’t know what the obligations were, and you advised him that regardless

of his union membership, 397 was obligated to pursue his grievance for him?

A: Yes,

Q: If the grievance was meritorious, correct?

A: Yes.

(Luminoso Dep., Ex. Q to Tykulsker Cert., at 22:18-23:4.)

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produce sufficient evidence to demonstrate that Local 397 acted arbitrarily, discriminatorily, or in

bad faith, and as no material facts are in dispute, the Court will grant summary judgment to Local

397 on the duty of fair representation claim.

B. Breach of the Collective Bargaining AgreementPlaintiff alleges that Sunoco violated the CBA by terminating him without just cause. As

previously noted, “[a] union’s breach of the duty of fair representation is a ‘necessary conditionprecedent’ to a Section 301 claim against an employer for breach of a collective bargaining

agreement.” Roe, 519 Fed. Appx. at 757 (quoting Aibright, 273 F.3d at 576). Since the Court has

dismissed the breach of duty offair representation claim against Local 397, the breach ofthe CBAclaim against Sunoco must be dismissed as well. See United Parcel Serv. Inc. v. Mitchell, 451U.S. 56, 62 (1981) (noting that “respondent was required in some way to show that the Union Ts

duty to represent him fairly at the arbitration had been breached before he was entitled to reach themerits of his contract claim”); Aibright, 273 F.3d at 576. The Court will therefore grant summary

judgment to Defendant Sunoco on the breach of contract claim.

VI. MOTION TO STRIKE PLAINTIFF’S ERRATA SHEET AND EXPERT REPORT

Defendants Sunoco and Gra. joined by Local 397. moved to strike portions of Plaintiffs

errata sheet and the expert report of Dr. Gerard A. Figurelli of Psychotherapy Associates, Inc. (the

“Psychotherapy Associates Report”). In particular, Defendants argue that Plaintiffs errata sheet

impermissibly seeks to alter the substance of his sworn testimony by changing his responses to the

31
stricken because 1) Plaintiff should not be permitted to introduce a report to bolster his claim for

emotional damages when Plaintiff abandoned that claim during his deposition; 2) Plaintiff

obstructed Defendants’ attempts to get discovery as to Plaintiffs emotional distress; and 3) the

report fails to comply with Fed. R. Civ. P. 26.

As the Court has granted summary judgment in favor of the Defendants on all counts, it

need not reach Defendants’ Motion to Strike. Whether or not the Court were to allow Plaintiff to

change his deposition answers from “no” to “yes” in response to the two above questions would

make no material difference to the Court’s above decisions. Plaintiffs mere assertion that he doeshave facts to support his claim that he was terminated because of his gout would not alter the

outcome of Plaintiffs disability discrimination claim because it does not provide the Court withany additional facts to consider, apart from Plaintiffs own belief as to the fact that he has somegrounds on which to base his LAD claim. Additionally, it is irrelevant whether or not Plaintiff isseeking damages for emotional distress, as the case as a whole has been dismissed. Thus, it is also

irrelevant whether or not to strike the Psychotherapy Associates Report. The Court will therefore

deny Defendants’ Motion to Strike as moot.
DATED: June 27, 2014

CLAIRE C. CECCHI, U.S.D.J.

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