IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

 

ROBERT HENSON, 

 Plaintiff, 

 v. 

U.S. FOODSERVICE, et al., 

 Defendants. 

Civil No. 11-1809 (JBS/KMW) 

OPINION

 

APPEARANCES: 

William Riback, Esq. 

Alex Schwartz, Esq. 

Lauren Plevinsky, Esq. 

William Riback LLC 

132 Haddon Ave. 

Haddonfield, NJ 08033 

 Attorneys for Plaintiff Richard Henson 

Karla Grossenbacher, Esq. 

Taron K. Murakami, Esq. 

Seyfarth Shaw LLP 

975 F Street NW 

Washington, DC 20004 

-andAlnisa S. Bell, Esq. 

Seyfarth Shaw LLP 

620 Eighth Avenue 

New York, NY 10018 

Attorneys for Defendant U.S. Foodservice, Inc. 

SIMANDLE, Chief Judge: 

I. INTRODUCTION 

Plaintiff Robert Henson brings this action against his 

former employer Defendant U.S. Foodservice, Inc. (“US Foods”) 

and Defendants John Does 1-10 alleging claims for interference 
2 

and unlawful retaliation under the Family Medical Leave Act 

(“FMLA”) and unlawful retaliation based on race and hostile work 

environment under the New Jersey Law Against Discrimination 

(“NJLAD”). This matter comes before the Court on Defendant US 

Foods’ motion for summary judgment on all counts. [Docket Item 

46.] The Court heard oral argument on November 6, 2013. US 

Foods’ motion will be granted because US Foods had a legitimate, 

non-discriminatory reason for terminating Plaintiff, which has 

not been cast into reasonable doubt, and Plaintiff was not 

subjected to a racially hostile work environment. 

II. BACKGROUND 

A. Factual Background 

a. Plaintiff’s Employment with US Foods 

US Foods distributes food, equipment, and related products 

to restaurants, hospitals, and other institutional customers. 

(Def. Statement of Undisputed Facts (“SOF”) ¶ 1.) 

Plaintiff, who is African-American, began working for US 

Foods on or about April 4, 2004. (Def. SOF ¶ 14.) Plaintiff 

worked as a Selector for US Foods’ Bridgeport facility in 

Bridgeport, New Jersey. (Def. SOF ¶ 15.) Selectors locate food 

products in the warehouse and transfer them to pallets. (Def. 
3 

SOF ¶ 16.) The boxes of product on pallets can be quite heavy 

and are stacked quite high. (Def. SOF ¶ 20.) 

“Leaning pallets,” i.e., pallets with product leaning to 

the side, must be rebuilt because they are significant safety 

risks. (Def. SOF ¶ 20.) Leaning pallets easily collapse, cause 

boxes to fall and, thus, pose a significant risk of injury. 

(Def. SOF ¶ 20.) Leaning pallets are also a risk to the product, 

which can be damaged from falling. (Def. SOF ¶ 21.) Pallets 

usually lean because of crushed product, which US Foods does not 

ship because of the risk of food spoilage or damage. (Def. SOF ¶ 

21.) Customers often refuse to accept leaning pallets and 

delivering such pallets threatens customer relationships. (Def. 

SOF ¶ 21.) 

Plaintiff’s union shop steward, William Anthony, who is 

also African-American, testified that Selectors “must break [a 

leaning pallet] down if they’re told to break it down.” (Anthony 

Dep. 29:8-9.) Anthony also testified that he had “never” seen a 

supervisor instruct an employee to return a leaning pallet and 

bring a new one. (Anthony Dep. 29:18.) Frank Keyser, the day 

warehouse manager, testified that, when there is a leaning 

pallet, “[t]he procedure would be to rebuild the skid and rewrap 

the skid.” (Keyser Dep. 21:16-17.) 
4 

US Foods’ Selectors at its Bridgeport facility are governed 

by the Rules of Conduct (“Rules”), which were negotiated by US 

Foods with the Union and which were approved and signed by the 

Union. (Def. SOF ¶ 9.) The Rules provide a non-exclusive list of 

required discipline and standards of conduct that employees must 

observe. (Def. SOF ¶ 10.) The Rules specify that certain conduct 

will subject an employee to “Immediate Termination,” including 

“Insubordination: including the failure to follow a direct order 

from a supervisor/manager.” (Def. SOF ¶ 12.) 

b. Plaintiff’s Mispicks 

Selectors are subject to various performance standards, 

including “mispicks,” which occur when employees incorrectly 

select product for delivery to customers. (Def. SOF ¶¶ 32-33.) 

In 2008, Plaintiff received disciplinary write-ups for mispicks 

on eight separate occasions. (Def. SOF ¶ 35.) In 2009, Plaintiff 

received disciplinary write-ups for mispicks on nine separate 

occasions. (Def. SOF ¶ 36.) In 2010, Plaintiff received one 

warning for mispicks. (Def. SOF ¶ 37.) 

During Plaintiff’s employment, US Foods’ employees were 

subject to progressive discipline for mispicks: (1) documented 

discussion, (2) documented discussion, (3) written warning, (4) 

second written warning, (5) one-day working suspension, (6) 

three-day working suspension, and (7) termination. (Def. SOF ¶ 
5 

34.) Disciplinary write-ups for mispicks were removed from an 

employee’s file if more than one year passed without that 

employee receiving a subsequent disciplinary write-up for 

mispicks. (Def. SOF ¶ 34.) US Foods management removed mispick 

disciplinary write-ups from Plaintiff’s employment file on a 

number of occasions. (Def. SOF ¶ 41.) 

c. Plaintiff’s Termination 

On August 26, 2010, Plaintiff was preparing a shipment that 

included one full pallet plus five additional boxes of frozen 

crab legs for a major US Foods customer. (Def. SOF ¶ 43.) 

Plaintiff retrieved a full pallet of crab legs from the 

warehouse freezer and added five boxes to the top. (Def. SOF ¶ 

43.) The pallet contained approximately 25 boxes weighing 30 

pounds each, for a total of 750 pounds stacked five feet high. 

(Def. SOF ¶ 45.) Each box sold, at that time, for $144.60, and 

the total value of the 25-box shipment was over $3,500. (Def. 

SOF ¶ 44.) 

Plaintiff “brought out a skid that was leaning.” (Pl. Dep. 

54:13.) When Plaintiff’s supervisor Jack Conway saw the leaning 

pallet, he instructed Plaintiff to rebuild it. (Def. SOF ¶ 48.) 

Instead of following Conway’s direction, Plaintiff switched the 

leaning pallet with a new “better-looking” one without Conway’s 

permission. (Def. SOF ¶ 49.) He added five boxes to the new 
6 

pallet, returned the leaning pallet to the freezer, and left 

work for the day. (Def. SOF ¶ 49.) Plaintiff did not follow 

Conway’s instruction because he “was just really trying to get 

home” and because he thought his way was “better.” (Def. SOF ¶ 

50.) Plaintiff had previously rebuilt pallets as instructed, and 

he admits that leaning pallets are unsafe. (Def. SOF ¶ 52.) 

Conway alleged that Plaintiff was insubordinate. (Pl. 

Counter SOF ¶ 3.) Conway told Robb Lebb, Director of Operations, 

that when Conway told Plaintiff to rebuild the pallet, Plaintiff 

responded that he would not rebuild it and instead would 

retrieve a new pallet. (Lebb Decl. ¶ 25.) Conway told Lebb that 

he then reiterated his instruction to rebuild the pallet and 

expressly told Plaintiff not to swap the leaning pallet with a 

new pallet. (Lebb Decl. ¶ 25.) Anthony, the union shop steward, 

also testified that Conway “said he told [Plaintiff] at least 

two, three times to rebuild that pallet.” (Anthony Dep. 58:21-

22.) 

The day after the incident, Plaintiff met with Conway; his 

Union shop steward, William Anthony; and Rob Lebb. (Pl. Dep. 

58:8-11.) Anthony testified that when Plaintiff was questioned 

about “why he did not do what he was told as far as rebuilding 

the pallet,” Plaintiff said “his way was better . . . why should 

he rebuild the pallet when he can just go in the slot and take 
7 

another pallet out.” (Anthony Dep. 18:14-21.) Anthony testified 

that Plaintiff “was told to specifically undo the pallet that he 

had placed in the dock” and that Plaintiff “thought it was 

easier for him to do it his way as opposed to the way he was 

being told to do it.” (Anthony Dep. 18:23-19:5.) Anthony 

testified that Plaintiff “wasn’t really remorseful in that 

meeting, no. Kept saying he indicated that he felt his way was 

better than the company’s way. He did not show no remorse in 

that meeting, no. He actually thought he was not doing nothing 

wrong.” (Anthony Dep. 60:21-61:2.) 

Plaintiff was terminated on August 31, 2010 by US Foods for 

his refusal to rebuild the crab-leg pallet per Conway’s direct 

orders. (Def. SOF ¶ 54.) The stated reason for the termination 

was insubordination and lack of remorse. (Pl. Counter SOF ¶ 28.) 

The decision to terminate Plaintiff’s employment was made by Rob 

Lebb, Director of Warehouse Operations, and Rick Hutter, 

Regional Vice President of Operations, based on the information 

Lebb obtained about the incident. (Def. SOF ¶ 54.) 

US Foods alleged that Plaintiff was not contrite. (Pl. 

Counter SOF ¶ 7.) At the meeting after the incident, Lebb 

perceived that Plaintiff did not express remorse for 

intentionally ignoring his supervisor’s instructions. (Lebb 

Decl. ¶ 25.) Plaintiff continues to maintain that he did the 
8 

right thing on August 26, 2010 and that he was never 

insubordinate. (Def. SOF ¶ 62, Pl. Response to Def. SOF ¶ 62.) 

At some point during the termination process, Anthony saw 

Conway and Lebb speak privately and “whatever occurred between 

their conversation, I don’t know.” (Anthony Dep. 36:25-37:1.) 

Plaintiff grieved his termination through the Union. (Def. 

SOF ¶ 57.) US Foods denied Plaintiff’s grievance, and the Union 

did not exercise its right to appeal the termination decision. 

(Def. SOF ¶ 63.) 

During the grievance process, neither Plaintiff nor the 

Union ever raised allegations of race or FMLA discrimination. 

(Def. SOF ¶ 64.) 

US Foods later terminated Plaintiff’s supervisor Conway for 

theft and dishonesty. (Pl. Counter SOF ¶ 12.) 

d. Plaintiff’s Work Environment 

A group of African-American employees typically ate lunch 

together in the break room. (Pl. Counter SOF ¶ 77.) Plaintiff 

testified that Conway made jokes in front of him and other 

African-American employees asking them during their lunch break 

if they were eating chicken and grape soda, calling their lunch 

break the “BET lunch,”1

 and commenting about his African-American 

 

1

 The “BET lunch” reference arose because the employees watched 

Black Entertainment Television. (Def. SOF ¶ 71.) 
9 

step-children listening to rap music. (Def. SOF ¶ 65.) Plaintiff 

also alleges that he heard Conway making racially-charged jokes 

during his lunch break, including jokes about African-Americans’ 

genital sizes and watching basketball. (Def. SOF ¶ 66.) 

According to Plaintiff, all of Conway’s comments occurred in the 

break room during the third lunch break. (Def. SOF ¶ 67.) These 

comments occurred “every day at lunchtime . . . with another 

black employee, [Conway] would go back and forth with.” (Pl. 

Dep. 53:7-9.) Plaintiff “didn’t want to hear” and “took 

offense.” (Pl. Dep. 53:10.) 

Selectors can choose between three different lunch break 

options and they are not required to eat lunch in the break 

room. (Def. SOF ¶ 68.) Plaintiff chose to attend the third lunch 

break. (Def. SOF ¶ 68.) 

Plaintiff claims that Rob Lebb had a policy of telling 

African-American Selectors who were talking at work to stop, but 

allowing Caucasian Selectors to continue socializing. (Def. SOF 

¶ 75.) On one occasion in 2006 or 2007, a supervisor told 

Plaintiff and another African-American Selector to stop talking 

and return to work but, on another occasion, Plaintiff witnessed 

the same supervisor permitting Caucasian Selectors to continue 

speaking. (Def. SOF ¶ 76.) Plaintiff admits that he should not 

have been talking during work hours. (Def. SOF ¶ 76.) Plaintiff 
10 

testified that he once saw another supervisor tell two AfricanAmerican Selectors who were talking to return to work while 

allowing Caucasian Selectors to continue talking. (Def. SOF ¶ 

77.) 

Plaintiff claims that, on one occasion, he saw Caucasian 

Selectors sent home for misconduct and then called back by 

Conway. (Def. SOF ¶ 78.) He also claims that, on one occasion, 

an African-American Selector was sent home for misconduct and 

not called back, but he admits that he does not know whether the 

African-American Selector was called back and does not know what 

the African-American Selector did that caused him to be sent 

home. (Def. SOF ¶ 78.) Plaintiff also admits that the AfricanAmerican Selector does not claim that he was sent home because 

of racial reasons. (Def. SOF ¶ 78.) 

Plaintiff believes that African-American Selectors received 

more disciplinary write-ups than Caucasian Selectors and were 

disciplined for mispicks that they did not actually have. (Def. 

SOF ¶ 79.) He testified that he “know[s]” Caucasian Selectors 

were disciplined less often “by them not complaining like 

everybody else.” (Pl. Dep. 200:16-17.) He admits this belief is 

based solely on perception, the speculation of other coworkers, 

and hearing certain names called over the warehouse intercom. 

(Def. SOF ¶ 79.) Plaintiff does not know for a fact that white 
11 

employees were disciplined less often. (Pl. Dep. 203:25-204:2) 

He also has “no proof” that African-Americans were written up 

for mispicks they did not have. (Pl. Dep. 204:10-13.) Plaintiff 

is aware of at least one Caucasian Selector who received “a lot 

of mispicks,” and at least two Caucasian employees complained to 

Plaintiff that they received mispick discipline that they did 

not deserve. (Def. SOF ¶¶ 80-81.) Plaintiff also perceived that 

he was disciplined for lateness when Caucasian employees were 

not. (Pl. Dep. 51:12-15.) 

US Foods never told Plaintiff that he was being terminated 

or that his job was threatened because of his race. (Def. SOF ¶ 

85.) 

e. Plaintiff’s FMLA Usage 

US Foods has an FMLA policy stating “[it] is the policy of 

US Foods . . . not to discharge or discriminate against any 

employee exercising his or her rights under the Federal Family 

and Medical Leave Act” and instructing employees who believe 

that they have been treated unfairly to contact the Division 

President or the President of Human Resources. (Def. SOF ¶ 22.) 

US Foods never prevented Plaintiff from taking FMLA leave. 

(Pl. Dep. 40:6-8.) Plaintiff began taking FMLA leave in 2006. 

(Def. SOF ¶ 23.) He was granted an FMLA leave of absence 

beginning on August 28, 2006, and he did not return to work for 
12 

the remainder of the year, thus taking more than 12 weeks of 

FMLA leave. (Def. SOF ¶ 23.) He returned to work at his same 

position on January 9, 2007. (Def. SOF ¶ 23.) In 2007, Plaintiff 

took eight days of intermittent FMLA leave. (Def. SOF ¶ 24.) In 

March 2009, Plaintiff was approved for intermittent FMLA leave 

from February 23, 2009 to July 22, 2009 and, during that time 

period, he took at least 11 FMLA leave days. (Def. SOF ¶ 25.) In 

July 2009, Plaintiff requested approval for another period of 

intermittent FMLA leave from July 23, 2009 through December 20, 

2009, and he took at least 10 days of leave during that period. 

(Def. SOF ¶ 25.) During the first two months of 2010, Plaintiff 

took at least 14 FMLA leave days. (Def. SOF ¶ 26.) He was then 

approved to take intermittent FMLA leave from March 10, 2010 

through September 9, 2010, and he took at least 18 more FMLA 

leave days during that period. (Def. SOF ¶ 26.) 

Plaintiff’s termination occurred during a designated FMLA 

period. (Pl. Counter SOF ¶ 2.) Plaintiff believed that his 

termination was based on his FMLA leave “because [he] was on 

FMLA.” (Def. SOF ¶ 27.) Plaintiff’s employment was never 

directly threatened because of his FMLA usage. (Pl. Response to 

Def. SOF ¶ 28.) 

According to Plaintiff, Darwin Moore, another US Foods 

employee who was terminated and filed a lawsuit alleging FMLA 
13 

and NJLAD violations, heard Rob Lebb tell employees that they 

were working more because of their “FMLA buddies” and encouraged 

employees to call people who were on FMLA leave and tell them to 

return to work. (Pl. Counter SOF ¶ 14.) Moore also testified 

that Lebb once said “these motherfuckers on FMLA [were] the 

reason [employees were] working . . . overtime.” (Pl. Counter 

SOF ¶ 15.) Moore testified that an employee named Pete had his 

job threatened when he took FMLA leave. (Pl. Counter SOF ¶ 27.) 

Plaintiff also heard Conway refer once to the FMLA as the 

“fraudulent medical leave act.” (Pl. Counter SOF ¶ 25.) 

f. US Foods’ Anti-Harassment Measures 

US Foods maintains a non-discrimination policy that 

prohibits unlawful discrimination based on, inter alia, race. 

(Def. SOF ¶ 2.) US Foods also provides annual training to its 

employees, supervisors, and management on its non-discrimination 

policy, anti-harassment policy, and policy prohibiting 

retaliation. (Def. SOF ¶ 2.) 

US Foods maintains a toll-free Check-In Line that employees 

may use to anonymously report unlawful discrimination, 

harassment, or retaliation. (Def. SOF ¶ 4.) 

On his day of hire, Plaintiff signed a form acknowledging 

that he read and understood US Foods’ Equal Opportunity Policy 

and agreed to “immediately report any perceived violations of 
14 

[that policy] to [his] supervisor or the Human Resources 

Department.” (Def. SOF ¶ 5.) 

US Foods’ Selectors are represented by Local No. 169 of the 

Teamsters Union. (Def. SOF ¶ 6.) Unionized Selectors may lodge 

complaints or grievances through their union. (Def. SOF ¶ 7.) 

During Plaintiff’s employment, William Anthony, an AfricanAmerican man, was the union steward. (Def. SOF ¶ 8.) 

Plaintiff never reported Conway’s conduct to Human 

Resources. (Pl. Dep. 53:24-54:1.) He never called the Check-In 

line. (Pl. Dep. 257:17-19.) 

B. Plaintiff’s Claims 

Plaintiff claims that his termination constituted unlawful 

interference with his FMLA rights and unlawful termination in 

retaliation for exercising his FMLA rights. Plaintiff also 

asserts claims for hostile work environment and unlawful 

termination under the NJLAD. Plaintiff seeks damages, including 

punitive damages. 

C. Jurisdiction 

The Court has original jurisdiction pursuant to 28 U.S.C. § 

1331 for the claims arising under federal law and supplemental 

jurisdiction pursuant to 28 U.S.C. § 1367(a) for the claims 

arising under state law. 
15 

D. Parties’ Arguments 

Defendant US Foods seeks summary judgment on all claims, 

arguing that: US Foods never denied Plaintiff FMLA leave to 

which he was entitled; Plaintiff cannot show a nexus between his 

FMLA leave and his termination; due to Plaintiff’s failure to 

rebuild the leaning pallet, Plaintiff was not meeting US Foods’ 

legitimate expectations; US Foods had a legitimate, nondiscriminatory reason for the termination; the conduct allegedly 

supporting Plaintiff’s hostile work environment claim is 

unsupported by admissible evidence and is legally insufficient; 

and US Foods had effective anti-harassment policies that 

Plaintiff did not use. 

In opposition, Plaintiff argues that he has direct evidence 

of animus; a reasonable jury could conclude that his race and/or 

FMLA usage factored into US Foods’ decision to terminate him; 

other employees engaged in similar or worse conduct without 

being terminated; his failure to rebuild the pallet should have 

been characterized as failure to follow instructions, not 

insubordination; a reasonable jury could find that the 

harassment he endured was severe and/or pervasive; and other 

persons in protected classes suffered harassment and 

discrimination. 
16 

In Reply, US Foods argues that the alleged evidence of 

discriminatory and anti-FMLA animus is unrelated to the 

decision-making process behind Plaintiff’s termination, there is 

no direct evidence, and none of the comparator employees are 

similarly situated. 

III. ANALYSIS 

A. Standard of Review 

The Court “shall grant summary judgment if the movant shows 

that there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a). “Only disputes over facts that might affect the 

outcome of the suit under the governing law will properly 

preclude the entry of summary judgment.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986). Essentially, “summary 

judgment will not lie if the dispute about a material fact is 

‘genuine,’ that is, if the evidence is such that a reasonable 

jury could return a verdict for the nonmoving party.” Id. 

Parties must support their factual positions by “citing to 

particular parts of materials in the record, including 

depositions, documents, electronically stored information, 

affidavits or declarations, stipulations . . ., admissions, 

interrogatory answers, or other materials.” Fed. R. Civ. P. 

56(c)(1)(A). The Court must “draw all reasonable inferences in 
17 

favor of the non-movant.” Kowalski v. L & F Products, 82 F.3d 

1283, 1288 (3d Cir. 1996). The time for completing discovery 

under the Court’s scheduling orders expired and no party asserts 

that additional discovery is needed. 

B. Plaintiff’s Unlawful Termination Claims Fail 

Summary judgment will be granted on Plaintiff’s unlawful 

termination claims under both the FMLA and the NJLAD because 

Plaintiff has not shown prima facie discrimination and because a 

reasonable jury could not find that US Foods’ reason for 

Plaintiff’s termination was pretextual.2

 

If Plaintiff presents direct evidence, then “the employer 

must prove that it would have fired the plaintiff even if it had 

not considered his [race or FMLA usage].” Fakete v. Aetna, Inc., 

308 F.3d 335, 338 (3d Cir. 2002). Direct evidence is “evidence 

of discriminatory attitudes about [FMLA or race] that were 

causally related to the decision to fire [Plaintiff].” Glanzman 

 

2

 The Court will analyze Plaintiff’s unlawful termination claims 

together because, under both the FMLA and the NJLAD, the Court 

examines whether the employer had a legitimate, nondiscriminatory basis for the termination. See, e.g., Brown v. DB 

Sales, Inc., Civ. 04-1512, 2005 WL 3591533, at *6 (E.D. Pa. Dec. 

29, 2005) (“If Plaintiff is able to successfully establish prima 

facie cases of both race discrimination claim and FMLA 

retaliation, both claims will be analyzed using the McDonnell 

Douglas three-stage burden shifting framework”); Sarnowski v. 

Air Brooke Limousine, Inc., 510 F.3d 398, 403 (3d Cir. 2007) 

(“In applying the [NJ]LAD, . . . courts use the same burdenshifting framework . . . adopted in McDonnell Douglas”). 
18 

v. Metro. Mgmt. Corp., 391 F.3d 506, 512 (3d Cir. 2004). 

“[S]tatements made by non-decision makers or by a decision maker 

unrelated to the decisional process itself are not direct 

evidence.” Id. at 513 (citing Price Waterhouse v. Hopkins, 490 

U.S. 228, 277 (1989)). In Glanzman, for example, the Third 

Circuit held that the plaintiff’s supervisor’s statement to two 

of her coworkers that he “wanted to fire her and ‘replace her 

with a young chippie with big tits’” was direct evidence. 

Glanzman, 391 F. 3d at 510. 

Plaintiff has not produced any evidence of discriminatory 

attitudes causally related to the termination decision. For 

example, he has not adduced any evidence of comments from 

Conway, Lebb, or Hutter that Plaintiff should be terminated 

because of his race or his FMLA usage. Even if Plaintiff had 

produced direct evidence, US Foods has shown, as discussed 

infra, that it would have terminated Plaintiff because of his 

insubordination and his lack of remorse. 

Absent direct evidence, “[i]f circumstantial evidence of 

[FMLA or race] discrimination is used, then the proponent of the 

evidence must satisfy the three-step test of McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973).” Glanzman, 391 F.3d at 512. 

To establish a prima facie discriminatory discharge case 

under the McDonnell Douglas framework in New Jersey, the 
19 

plaintiff must demonstrate: “(1) that plaintiff is in a 

protected class; (2) that plaintiff was otherwise qualified and 

performing the essential functions of the job; (3) that 

plaintiff was terminated; and (4) that the employer thereafter 

sought similarly qualified individuals for that job.” Victor v. 

State, 203 N.J. 383, 409 (2010). Plaintiff “is African–American, 

which is a protected class,” and US Foods fired him. Wilcher v. 

Postmaster Gen., 441 F. App'x 879, 881 (3d Cir. 2011). But 

Plaintiff has not established the third element of the prima 

facie case, i.e., that he was performing the essential functions 

of the job. Plaintiff admitted that he did not follow Conway’s 

order to fix the leaning pallet, leaning pallets are unsafe, and 

insubordination is a terminable offense. Therefore, Plaintiff 

has not established a prima facie discriminatory discharge case. 

The prima facie requirements for an FMLA retaliation claim 

are similar: “(1) he took an FMLA leave, (2) he suffered an 

adverse employment decision, and (3) the adverse decision was 

causally related to his leave.” Conoshenti v. Pub. Serv. Elec. & 

Gas Co., 364 F.3d 135, 146 (3d Cir. 2004). Plaintiff was on an 

intermittent FMLA leave period when he was terminated and his 

termination is an adverse employment decision. Plaintiff has 

not, however, shown that there was any connection between his 

termination and his FMLA usage. Plaintiff has been using FMLA 
20 

leave intermittently since 2004 without any adverse employment 

impacts, and “the Court is persuaded by evidence of Defendant's 

history of approving the Plaintiff's . . . FMLA leave that it 

did not act with discriminatory motive in firing the Plaintiff.” 

Yashenko v. Harrah's NC Casino Co., LLC, 352 F. Supp. 2d 653, 

662 (W.D.N.C. 2005), aff'd, 446 F.3d 541 (4th Cir. 2006). 

Plaintiff’s unlawful termination claims therefore fail because 

Plaintiff has not established prima facie cases under the NJLAD 

or FMLA. 

Even if Plaintiff had established a prima facie case of 

FMLA or race discrimination, Plaintiff’s claims would not 

survive the remaining steps in the McDonnell Douglas analysis. 

After the prima facie step, “the burden shifts to the defendant 

to rebut the proof of discrimination by articulating some 

legitimate, nondiscriminatory reason for the employee's 

discharge.” Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 

1989). The plaintiff may then show that “the alleged reasons 

proffered by the defendant were pretextual and that the 

defendant intentionally discriminated . . . .” Id. To show 

pretext, Plaintiff must submit evidence which: “1) casts 

sufficient doubt upon each of the legitimate reasons proffered 

by the defendant so that a factfinder could reasonably conclude 

that each reason was a fabrication; or 2) allows the factfinder 
21 

to infer that discrimination was more likely than not a 

motivating or determinative cause . . . .” Fuentes v. Perskie, 

32 F.3d 759, 762 (3d Cir. 1994). 

A reasonable jury could not conclude that Defendant 

fabricated the reasons, i.e., insubordination and lack of 

remorse, for the termination. Plaintiff has admitted the 

following facts: the crab-leg pallet was leaning; leaning 

pallets are unsafe; his supervisor Jack Conway directed him to 

rebuild the pallet; instead of following Conway’s order, 

Plaintiff switched the leaning pallet with a different one; 

insubordination includes the failure to follow a direct order; 

and insubordination subjects an employee to immediate 

termination. Based on Plaintiff’s admissions, there is no 

factual dispute that Plaintiff was insubordinate and that his 

insubordination subjected him to termination. 

Plaintiff argues that he apologized to Conway at the 

meeting after the incident and, therefore, there is a disputed 

issue of material fact as to whether he showed remorse. The 

Court finds that there is no factual dispute because, in his 

statement of facts, Plaintiff stated that he “was never 

insubordinate.” (Pl. Response Def. SOF ¶ 62.) Plaintiff’s union 

shop steward testified that, at the meeting after the crab-leg 

incident, Plaintiff “wasn’t really remorseful . . . . Kept 
22 

saying he indicated that he felt his way was better than the 

company’s way. He did not show no remorse in that meeting, no. 

He actually thought he was not doing nothing wrong.” (Anthony 

Dep. 60:21-61:2.) Moreover, Defendant perceived that Plaintiff 

was not remorseful, and “[w]hat is at issue is the perception of 

the decision maker, not the plaintiff's view . . . .” Brown v. 

DB Sales, Inc., Civ. 04-1512, 2005 WL 3591533, at *5 (E.D. Pa. 

Dec. 29, 2005). Even if Defendant wrongfully perceived that 

Plaintiff was not remorseful, that erroneous perception would 

not show that Defendant acted with discriminatory intent.3

 

Plaintiff also argues that his conduct should be 

characterized as failure to follow instructions, which is not a 

terminable offense, rather than insubordination. Frank Keyser, 

the day warehouse manager who was not involved with Plaintiff’s 

termination, testified that “failure to follow instruction would 

be if you are instructed to do something, to fix something, and 

you proceed not to do it . . . insubordination would be if you 

are told to do it, and you start getting hostile with me, 

refusing to do it . . . .” Plaintiff’s counsel asked Keyser to 

 

3

 Moreover, US Foods notes that it was lenient in disciplining 

Plaintiff for his mispick record. US Foods removed mispick 

disciplinary letters from Plaintiff’s file and offered him 

training opportunities. This leniency shows a lack of 

discriminatory animus. 
23 

classify the misconduct when an employee “is advised or told or 

instructed to unload or repackage a pallet, and in his mind he 

thinks it is better to restock and pull out a new, a different 

package.” (Keyser Dep. 64:10-14.) Keyser responded that “[j]ust 

in that scenario you gave me, I would say that would be failure 

to follow instructions.” (Keyser Dep. 64:19-21.) Plaintiff’s 

counsel did not mention a leaning pallet in his hypothetical. 

Defendant’s counsel asked, “If a warehouse employee had a 

leaning skid and was told to rebuild that skid, and instead of 

rebuilding that skid, took it upon himself to return that skid 

back to the freezer and take a new skid, would that be 

considered insubordination?” (Keyser Dep. 97:18-24.) Keyser 

responded, “Yes.” In other words, when Keyser was presented with 

a hypothetical accurately reflecting the present facts, he 

classified Plaintiff’s behavior as insubordination. 

Moreover, the Rules specify that insubordination 

“includ[es] the failure to follow a direct order from a 

supervisor/manager.” (Def. SOF ¶ 12.) It is undisputed that 

Conway ordered Plaintiff to rebuild the leaning pallet and that 

Plaintiff did not do so. The record supports US Foods’ decision 

to classify Henson’s conduct in the crab-leg incident as 

insubordination. 
24 

Moreover, even if US Foods did mistakenly classify 

Plaintiff’s conduct as insubordination, Plaintiff has not 

adduced any evidence indicating that discriminatory animus was a 

factor behind such a mistake. “To discredit the employer's 

proffered reason, however, the 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.” Fuentes v. Perskie, 32 F.3d at 765. Anthony, the 

union shop steward, implied that the classification may have 

been erroneous: When asked the reason for Plaintiff’s 

termination, Anthony, testified that his “interpretation” was 

that Plaintiff “failed to follow instructions, but 

insubordination, I don’t know.” (Anthony Dep. 37:11-18.) But 

when he was asked whether race had an effect on Plaintiff’s 

discipline, Anthony testified “No. No. Not here, no. Not in 

front of me . . . no, and I’m an African-American.” (Anthony 

Dep. 38:25-39-2.) There is ample evidence supporting US Foods’ 

decision to classify Plaintiff’s behavior as insubordination 

and, even if the classification was inappropriate, there is no 

evidence indicating that the classification was based on 

discriminatory animus. 
25 

Plaintiff attempts to show pretext by arguing that 

similarly situated employees were not terminated despite conduct 

that was insubordinate or otherwise problematic. “[T]o be 

considered similarly situated, comparator employees must be 

similarly situated in all relevant respects . . . tak[ing] into 

account factors such as the employees’ job responsibilities, the 

supervisors and decision-makers, and the nature of the 

misconduct engaged in.” Wilcher, 441 F. App'x at 882 (citations 

omitted). In terms of the misconduct, the comparators must have 

“engaged in similar conduct without such differentiating or 

mitigating circumstances as would distinguish their conduct or 

the employer's treatment of them.” Opsatnik v. Norfolk S. Corp., 

335 F. App'x 220, 223 (3d Cir. 2009). 

None of Plaintiff’s examples are similarly situated in all 

relevant respects. Plaintiff cites employees whose misconduct 

was wholly dissimilar, including employees who were dishonest, 

falsified company documents, damaged company property, testified 

positive for controlled drug substances, or missed work days. At 

oral argument, Plaintiff emphasized that these comparators are 

appropriate because their conduct was worse than Plaintiff’s 

conduct, but their discipline was less severe. Plaintiff has not 

cited any case law allowing comparators whose misconduct was 

wholly dissimilar. Even if the comparators were appropriate, 
26 

there is some distinguishing evidence. For example, the employee 

who tested positive for controlled drug substances “was 

reinstated after he voluntarily enrolled in a rehabilitation 

program and in light of the fact that he had been with the 

company for more than 15 years without any other disciplinary 

action in his personnel file.” (Def. Responses to Pl. Counter 

SOF ¶ 49.) Furthermore, even if Plaintiff “has identified 

several individuals who committed violations of either such 

frequency or severity that they could have been discharged . . . 

these comparators do not create a genuine issue of material 

fact. [Plaintiff]’s comparator evidence does not cast doubt on 

[Defendant]’s otherwise satisfactory explanation for his 

termination.” Opsatnik, 335 F. App'x at 224. 

Plaintiff also cites examples of employees who were 

insubordinate by refusing to complete work that a supervisor had 

assigned to them. The insubordinate comparators are also inapt 

because none of them refused to comply with an order, left an 

unsafe condition, and lacked remorse. For example, Lebb 

explained that one of the employees was remorseful during the 

grievance process: he “realized what he had done was 

inappropriate and . . . was very, very apologetic for what he 

had done and then was honest of what happened so we took it into 

consideration and we reinstated him.” (Lebb Dep. 27:9-15.) The 
27 

other insubordinate comparator “came back and said I’ll do the 

work I shouldn’t of refuse it, let me have the work . . . .” 

(Lebb Dep. 17:9-11.) In both of these examples, therefore, US 

Foods management perceived that the insubordinate employee was 

remorseful. By contrast, Plaintiff continues to insist that his 

behavior was appropriate. Plaintiff’s comparator evidence is 

inadequate to show pretext. 

Plaintiff also attempts to show pretext by citing anti-FMLA 

and racially discriminatory comments, such as Conway’s comment 

about African-American employees eating grape soda and chicken 

or Conway’s reference to the FMLA as the fraudulent medical 

leave act. These comments do not show pretext because “[s]tray 

remarks by non-decisionmakers or by decisionmakers unrelated to 

the decision process are rarely given great weight, particularly 

if they were made temporally remote from the date of decision.” 

Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 

(3d Cir. 1992). Conway’s remarks are offensive, but a reasonable 

jury could not find that the comments were especially directed 

at Plaintiff or that they indicate that Conway planned to 

terminate African-American or FMLA employees more frequently. 

In Moore v. U.S. Foodservice, Civ. 11-2460, 2013 WL 5476405 

(D.N.J. Sept. 30, 2013), another US Foods employee, Darwin 

Moore, brought claims for FMLA interference and retaliation 
28 

against US Foods. The Moore court examined some of the same 

evidence of anti-FMLA sentiment, including Moore’s contentions 

that 

At pre-shift meetings, . . . Robert Lebb, Director of 

Operations, would tell the employees they were working 

more because of their “FMLA buddies” and encouraged 

employees to call those out on FMLA, to tell them to 

come to work. Mr. Lebb's other pejoratives included 

“FMLA brothers” and that “these motherfuckers on FMLA 

[were] the reason [employees were] working . . . 

overtime.” Mr. Lebb specifically referred to 

[Defendant] needing to expend resources for overtime 

because employees were utilizing FMLA. 

Id. at *8, n.4 (citations to Moore dep. omitted). The Moore 

court held that “there is no support in the record for 

Plaintiff's claim that Defendant terminated his employment in 

retaliation for taking FMLA leave. Rather, Plaintiff exceeded 

the number of unexcused absences allowed by his employer, . . . 

which ultimately resulted in Plaintiff’s termination.” Id. at 

*8. Similarly, in the present case, Plaintiff has not adduced 

any evidence that discriminatory or retaliatory animus motivated 

Defendant’s decision to terminate him. 

Plaintiff argues that “[a] reasonable jury can also 

discredit the asserted reason for termination because the 

Manager who made the allegation was Jack Conway.” (Pl. Opp’n at 

10.) Plaintiff asserts that Conway is not credible because he 
29 

was terminated for dishonesty and theft and showed 

discriminatory animus based on Plaintiff’s race and FMLA usage. 

The Court finds that a reasonable jury could not find that 

Conway’s allegations surrounding the insubordination incident 

were false: Plaintiff admits that he disobeyed Conway’s order 

and continues to argue that his conduct was appropriate. The 

relevant facts that formed the basis of Plaintiff’s termination, 

i.e., Plaintiff’s refusal to follow a direct order and his lack 

of remorse, are not disputed. Likewise, Plaintiff’s poor work 

history of multiple citations for mispicks is not disputed, none 

of which turns on Conway’s credibility. At oral argument, 

Plaintiff’s counsel argued that Conway was a decisionmaker in 

the termination process and that Conway’s private meeting with 

Lebb indicates the possibility that Conway advocated for 

termination based on discriminatory animus. There is no evidence 

in the record regarding what Lebb and Conway discussed and the 

mere fact that they met does not create a disputed issue of 

material fact, especially when Plaintiff has admitted the facts 

that show insubordination. 

The Court will grant summary judgment to Defendant US Foods 

on Plaintiff’s NJLAD and FMLA unlawful retaliation claims 

because Plaintiff failed to establish prima facie cases of 

discrimination for either claim and, even if he had passed the 
30 

prima facie threshold, he has not shown that US Foods’ stated 

non-discriminatory reasons for the termination, i.e., 

insubordination and lack of remorse, were pretextual. 

C. Plaintiff’s FMLA Interference Claim Fails 

Section 2615(a)(1) of the FMLA makes it “unlawful for any 

employer to interfere with, restrain, or deny the exercise of or 

the attempt to exercise, any right provided under this 

subchapter.” 29 U.S.C. § 2615(a)(1). “In order to assert a claim 

of interference, an employee must show that he was entitled to 

benefits under the FMLA and that his employer illegitimately 

prevented him from obtaining those benefits.” Sarnowski v. Air 

Brooke Limousine, Inc., 510 F.3d 398, 401 (3d Cir. 2007). 

Plaintiff has not shown that US Foods ever denied him FMLA leave 

to which he was entitled. 

Plaintiff also argues that the termination constituted 

interference with his FMLA rights because he was on an 

intermittent FMLA leave period when the termination occurred. 

But “‘[t]he FMLA is not a shield to protect employees from 

legitimate disciplinary action by their employers if their 

performance is lacking in some manner unrelated to their FMLA 

claim.’” Brown v. DB Sales, Inc., Civ. 04-1512, 2005 WL 3591533, 

at *11 (E.D. Pa. Dec. 29, 2005) (quoting Cohen v. Pitcairn Trust 
31 

Co., 2001 U.S. Dist. LEXIS 10876, at *30 (E.D. Pa. June 20, 

2001)). As discussed above, US Foods had a legitimate, nondiscriminatory reason for terminating Plaintiff, which has not 

been discredited by evidence that a reasonable factfinder could 

determine to be pretextual. That Plaintiff was on intermittent 

leave status when he was insubordinate at work by refusing to 

follow the repeated orders of his supervisor does not shield him 

from the termination decision. His refusal to follow the orders 

and his lack of remorse had nothing to do with his intermittent 

FMLA leave status. 

The Court will grant summary judgment on Plaintiff’s FMLA 

interference claim. 

D. Plaintiff’s Hostile Work Environment Claim Fails 

To establish an NJLAD hostile work environment claim, 

Plaintiff must show that “(1) the conduct complained of was 

unwelcome; (2) that it occurred because of the plaintiff's 

inclusion in a protected class under the LAD; and (3) that a 

reasonable person in the same protected class would consider it 

sufficiently severe or pervasive to alter the conditions of 

employment and create an intimidating, hostile, or offensive 

work environment.” El-Sioufi v. St. Peter's Univ. Hosp., 382 

N.J. Super. 145, 178 (App. Div. 2005). “[N]ot every offensive 

remark, even if direct, is actionable . . . epithets or comments 
32 

which are merely offensive will not establish a hostile work 

environment claim.” Id. (citations omitted). To determine 

whether an environment is hostile or abusive, the Court must 

“look[] at all the circumstances, which may include the 

frequency of the discriminatory conduct; its severity; whether 

it is physically threatening or humiliating, or a merely 

offensive utterance; and whether it unreasonably interferes with 

an employee's work performance.” Id. (citations omitted). 

“Neither rude and uncivil behavior nor offensive comments alone 

create a hostile work environment under the LAD.” Shaw v. FedEX 

Corp., A-1634-10T3, 2012 WL 3116722, at *5 (N.J. Super. Ct. App. 

Div. July 20, 2012). 

Plaintiff’s hostile work environment claim is based on (1) 

the comments of his supervisor Jack Conway, and (2) Plaintiff’s 

perception that African-American employees were treated less 

favorably than Caucasian employees because African-Americam 

employees were not permitted to socialize during work hours and 

were targeted for mispick discipline. 

Conway’s comments are insufficient to establish a hostile 

work environment claim. Plaintiff alleges that Conway made 

comments during the third lunch break in which Conway joked 

about African-Americans’ genital sizes and watching basketball, 

asked the employees if they were eating chicken and grape soda, 
33 

called the lunch break the “BET lunch” in reference to Black 

Entertainment Television, and made comments about Conway’s own 

African-American stepchildren listening to rap music. 

Plaintiff has not alleged that these comments interfered 

with his work performance and, therefore, he fails to establish 

an essential element of a hostile work environment claim. 

Moreover, Plaintiff has acknowledged that the comments occurred 

during the third lunch break; that many of the comments stemmed 

from Conway’s banter with another employee, who is AfricanAmerican; that Plaintiff had multiple lunch break options; and 

that Plaintiff was not required to eat his lunch in the break 

room. While Conway’s comments could certainly be perceived as 

offensive, a reasonable jury would not find that these lunchroom 

comments and banter created a work environment that was 

sufficiently severe or pervasive to alter the conditions of 

employment for Plaintiff as an African-American. 

Plaintiff has not adduced any evidence to support his claim 

that African-American employees were disciplined more 

frequently. For example, Plaintiff testified that he “know[s]” 

Caucasian Selectors were disciplined less often “by them not 

complaining like everybody else.” (Pl. Dep. 200:16-17.) But he 

admits this belief is based solely on perception, the 

speculation of other coworkers, and hearing certain names called 
34 

over the warehouse intercom. (Def. SOF ¶ 79.) He has “no proof” 

that African-Americans were written up for mispicks they did not 

have. (Pl. Dep. 204:10-13.) Plaintiff has not adduced competent 

evidence to support his claims of disparate treatment. 

“Perception like speculation and suspicion cannot support a 

cause of action.” Mandel v. UBS/PaineWebber, Inc., 373 N.J. 

Super. 55, 79 (App. Div. 2004). 

Furthermore, US Foods had various anti-harassment 

mechanisms, and the existence of such mechanisms can mitigate an 

employer’s liability. The New Jersey Supreme Court has held that 

a plaintiff may show that an employer was negligent by 

its failure to have in place well-publicized and 

enforced anti-harassment policies, effective formal 

and informal complaint structures, training, and/or 

monitoring mechanisms. We do not hold . . . that the 

presence of such mechanisms demonstrates the absence 

of negligence. However, the existence of effective 

preventative mechanisms provides some evidence of due 

care on the part of the employer. 

Lehmann v. Toys R Us, Inc., 132 N.J. 587, 621 (1993); cf. Gaines 

v. Bellino, 173 N.J. 301, 320 (2002) (“A defendant is entitled 

to assert the existence of an effective anti-sexual harassment 

workplace policy as an affirmative defense to vicarious 

liability”). Multiple factors can show an employer’s commitment 

to preventing a hostile work environment: 

A company that develops policies reflecting a lack of 

tolerance for harassment will have less concern about 
35 

hostile work environment or punitive damages claims if 

its good-faith attempts include periodic publication 

to workers of the employer's anti-harassment policy; 

an effective and practical grievance process; and 

training sessions for workers, supervisors, and 

managers about how to recognize and eradicate unlawful 

harassment. 

Cavuoti v. New Jersey Transit Corp., 161 N.J. 107, 121 (1999). 

 Evidence in the record shows that US Foods satisfied many 

of these factors. US Foods had an anti-discrimination policy, 

annual training, and remedial mechanisms for reporting 

complaints. It also had a toll-free Check-In Line that employees 

could use to anonymously report unlawful discrimination, 

harassment, or retaliation. (Def. SOF ¶ 4.) On his day of hire, 

Plaintiff signed a form acknowledging that he read and 

understood the Equal Opportunity Policy and agreed to 

“immediately report any perceived violations . . . to [his] 

supervisor or the Human Resources Department.” (Def. SOF ¶ 5.) 

 US Foods cited the declaration of William Nunan, the Human 

Resources Manager for US Foods’ Philadelphia Division to show 

that US Foods provides annual training on its nondiscrimination, anti-harassment, and anti-retaliation policies 

to its employees, supervisors, and management. (Nunan Decl. ¶ 

6.) Plaintiff appeared to deny this fact because “management was 

aware of Jack Conway’s harassment / retaliation.” (Pl. Response 

Def. SOF ¶ 2.) Plaintiff did not provide any evidence indicating 
36 

that US Foods did not provide these annual trainings. At oral 

argument, Plaintiff questioned the training but, again, did not 

cite to any evidence in the record. Plaintiff has not adduced 

any evidence indicating that the complaint mechanisms were 

ineffective, that complaints were ignored, that the policies 

were not published, or that the training sessions were 

inadequate or nonexistent. 

Plaintiff admits that he did not use any of US Foods’ antiharassment programs and remedial measures. This failure to use 

the remedial mechanisms, along with the other factors discussed 

supra, supports granting summary judgment for US Foods. See 

Gibson v. State - Office of Attorney Gen., A-1426-05T2, 2007 WL 

737748, at *14 (N.J. Super. Ct. App. Div. Mar. 13, 2007) (“As 

there is ample evidence . . . demonstrating defendants created 

and provided . . . avenues to address and remedy violations, and 

that plaintiff failed to avail herself of those available 

remedies . . ., the motion judge did not err when he found that 

the complaint should be dismissed as a matter of law”); Ahmed v. 

Interstate Mgmt. Co., Civ. 11-683, 2012 WL 3038523, at *18 

(D.N.J. July 25, 2012) (granting summary judgment on NJLAD 

hostile work environment claim because “[a]s Defendant had 

effective anti-harassment policies in place and responded to 

complaints brought to its attention, a reasonable jury could not 
37 

find Defendant liable on a hostile work environment claim based 

on allegedly discriminatory comments made by his coworkers that 

Plaintiff did not report”). 

Plaintiff argues that Barnes v. Office Depot, Inc., Civ. 

08-1703, 2009 WL 4133563 (D.N.J. Nov. 24, 2009), stands for the 

proposition that “[w]hen a defendant contends that it had in 

place policies and procedures addressing anti-harassment, the 

Court has held that whether said policies or responses 

constituted a good faith effort to comply with a statute is 

something that is best left to the jury.” (Pl. Opp’n at 23.) The 

Barnes court found, however, that “the record indicates 

unwillingness to respond to complaints submitted by the 

plaintiff by high level Office Depot employees” and, therefore, 

that “[w]hether Office Depot made a good faith effort to comply 

with Title VII and to respond to complaints made by Ms. Barnes 

is a question of fact best left to a jury.” Barnes v. Office 

Depot, 2009 WL 4133563, at *15. In this case, there is quite 

plainly no evidence that plaintiff made any complaints and no 

evidence that US Foods was unresponsive to others’ complaints. 

Plaintiff cites Shepherd v. Hunterdon Developmental Center, 

174 N.J. 1 (2002), in which the New Jersey Supreme Court 

reversed summary judgment on a hostile work environment claim, 

and argues that “[t]he facts here far exceed what occurred in 
38 

Shepherd.” (Pl. Opp’n at 18.) In Shepherd, the plaintiffs had 

supported a lawsuit that their coworkers had brought against 

their supervisors. The Shepherd plaintiffs argued that, when 

their coworkers’ lawsuit began, the supervisors “began a pattern 

of ill treatment and ultra-critical supervision,” including 

statements that the supervisors “were going to watch everything 

that you . . . do” and that “what goes around comes around and 

you will be sorry for not writing better statements for us 

concerning the lawsuit.” Id. at 9. The plaintiffs sent complaint 

letters to the superintendent and filed discrimination 

complaints with the Department of Human Services. The teachings 

of Shepherd are not applicable to the present case, where 

Plaintiff never filed any complaints regarding racial 

discrimination and where Plaintiff has not adduced any evidence 

indicating that US Foods’ supervisors threatened him. 

A reasonable jury could not find that Plaintiff was subject 

to a hostile work environment because (1) while Conway’s 

comments were offensive, they did not impair Plaintiff’s work 

performance, (2) Conway’s comments occurred during an optional 

lunch break and were primarily in the context of banter with 

other African-American employees, (3) Plaintiff lacks competent 

evidence supporting his perception that African-American 

employees were subject to different disciplinary and deportment 
39 

standards, and (4) Plaintiff failed to use US Foods’ antiharassment remedial measures and has not shown that US Foods’ 

trainings were inadequate. The Court will grant summary judgment 

on Plaintiff’s hostile work environment claim. 

V. CONCLUSION 

The Court will grant summary judgment for Defendant on 

Plaintiff’s claims for unlawful interference with his FMLA 

rights, unlawful termination in retaliation for exercising his 

FMLA rights, hostile work environment under the NJLAD, and 

unlawful termination under the NJLAD. Because summary judgment 

will be granted on all claims, final judgment is entered for 

Defendant. Because no named Defendants remain in this action, 

the Court will instruct the Clerk of Court to close this matter. 

November 19, 2013 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE 

 Chief U.S. District Judge