Not For Publication

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

SALIM A. MUHAMMAD,

 Plaintiff,

v.

DAY & ZIMMERMANN NPS, et al.,

 Defendants.

Civil Action No.: 2:09-cv-01670-PGS-ES

OPINION

SHERIDAN, U.S.D.J.

Plaintiff Salim A. Muhammad (“Plaintiff”)was discharged byDay&Zimmermann NPS, Inc.

(D&Z) in April 2007. Plaintiff, who is African-American, brought suit for discriminatory discharge

and retaliation under the Civil Rights Act of 1866, 42 U.S.C. §1981 et seq. (§1981) and the New

Jersey Law Against Discrimination (NJLAD). This matter comes before the Court on two motions

for summary judgment, one submitted by D&Z and one submitted by the International Brotherhood

of Boilermakers, Local Lodge 28 (Local 28). Both motions seek dismissal of the Plaintiff’s

complaint in its entirety. For the reasons set forth below, the motions are granted. 

I. BACKGROUND

Muhammad is a boilermaker who travels throughout the country in pursuit of work. He

receives work by contacting the union in a particular territory to request employment. 

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D&Z provides contract construction and repair services to third-party clients. It does so by

utilizing temporary union laborers for its projects. In 2007, D&Z was awarded a contract to perform

work at the Hudson Generating Station (hereinafter “Hudson Project”), a power plant operated by

Public ServiceElectric and Gas Company(PSE&G). The work entailed removingmetal tubing from

inside of old condensers and replacing it with new tubing.

In response to the contract, the D&Z project manager, Ken Letsom, contacted a business

manager at Local 28 to secure workers for the Hudson Project. Local 28 then provided workers for

the project, including Plaintiff. Plaintiff’s employment on the project lasted from March 27, 2007

until the morning of April 10, 2007. Another worker, Joseph Stephenson, who is caucasian, also

began work with D&Z at the Hudson Project on March 27, 2007. Both Stephenson and Plaintiff

were assigned to work the night shift. On their first day of work, they received orientation on the

rules and regulations particular to the project. 

In early April 2007, Plaintiff struck his knee while working on the job. He continued to

work, but the knee swelled overnight and he was examined by a doctor the next day. Plaintiff then

informed his foreman, Steve Pocci, of the injury. Pocci was upset and questioned him about why

he did not report the injury earlier. Plaintiff responded by saying, “listen, tone it down sir. I’m a

grown man now. We don’t want no fisticuffs.” Pocci then informed Letsom, and Letsom also

admonished Plaintiff for not reporting the injuryimmediately. Pursuant to D&Zpolicy, Plaintiff was

taken to an approved doctor and was placed on light duty work. 

Also in early April 2007, Pocci, who is caucasian, allegedly harassed Plaintiff by (1)

disrespectfully pointing his finger in Plaintiff’s face two or three times, (2) by poking Plaintiff in the

back and telling him to get off the phone in the work zone, (3) by complaining about Plaintiff leaving

the break trailer later than the other workers, (4) and by remarking that Plaintiff worked too slowly

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on some tasks. After Pocci poked Plaintiff in the back, Plaintiff met with D&Z management and the

Local 28 steward, Paul Tsakonas, to complain about Pocci’s alleged harassment. Pocci was the only

employee that Plaintiff complained about at the Hudson Project. 

On April 10, 2007, a “safety stand down” required the crews to stop working and remove

debris from the work area. In preparation for removing the debris, a head count was performed and

Stephenson and Plaintiff were found to be missing. D&Z management began searching for them. 

Plaintiff and Stephenson were found outside the PSE&G restroom an hour later. The PSE&G

restroom was located outside of the work area and was allegedly off-limits for D&Z employees. 

After an angry exchange of words between Plaintiff and the general foreman, Joe Coe, both Plaintiff

and Stephenson were terminated. Thereafter, project manager Letsom wrote in the log book that

they had been terminated for being out of the work area for a time greater than forty-five minutes. 

Plaintiff maintains that he and Stephenson were not “missing” for forty-five minutes; they

were only standing where a supervisor had directed them to wait for work that needed to be

performed. He also alleges that they went to use the restroom only after they were unable to find a

supervisor to ask permission. Finally, Plaintiff maintains that he was never expressly told that he

could not use the PSE&G bathroom. Stephenson maintains that they were terminated over a

“miscommunication.”

After the termination, Plaintiff left the site and Stephenson went into a work trailer.

Stephenson allegedly then heard a “superintendent” who is unknown to him say: “The n***er has

got to go. He has been nothing but trouble.” Stephenson identified the speaker as over fifty-eight

years old, with grey hair. No D&Z employee fits that exact description. Plaintiff maintains that the

speaker was Dan Woods, who was employed by D&Z as personnel coordinator on the project.

Plaintiff also maintains that Woods was the ultimate decision-maker in D&Z’s decision to terminate

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him. Stephenson also reports that another unidentified individual mentioned brieflythat D&Zwould

like to rehire Stephenson in a few days because he was a good employee. Stephenson alleges that

the unidentified “superintendent” dismissed that idea in favor of permanent termination. Stephenson

recounted these comments to Plaintiff several days later. 

Following his termination, Plaintiff filed a grievancewithLocal 28 contesting histermination

as unjust. After an investigation, Local 28 determined that the terminations of Plaintiff and

Stephenson were appropriate. On April 9, 2009, Plaintiff brought claims against Defendants for

discriminatorydischarge and retaliation under the NJLAD and §1981. Defendants now come before

the Court seeking dismissal by way of summary judgment. 

II. SUMMARY JUDGMENT STANDARD

A court shall grant summary judgment under Rule 56(c) of the Federal Rules of Civil

Procedure “if the pleading, the discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and that the movant is entitled to judgment as

a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c). An

issue is genuine if it is supported by evidence such that a reasonable jury could return a verdict in

the nonmoving party’s favor. Panda Allia v. Target Corp., 2010 US. Dist. LEXIS 25337, at *3,

(D.N.J. 2010). A fact is material if, “under the governing substantive law, a dispute about the fact

might affect the outcome of the suit.” Id. In considering a motion for summary judgment, a district

court may not make credibility determinations or engage in any weighing of the evidence; instead,

the non-moving party’s evidence “is to be believed and all justifiable inferences are to be drawn in

his favor.” Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004).

On a summary judgment motion, the moving party must first show that no genuine issue of

material facts exists. Celotex, 477 U.S. at 323. The nonmoving party must then rebut the motion

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with “facts in the record and cannot rest solely on assertions made in the pleadings, legal

memoranda, or oral argument.” Berkeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir.

2006). Unsupported allegations are insufficient to defeat summary judgment. Schoch v. First

Fidelity Bancorp., 912 F.2d 654, 657 (3d Cir. 1990). Thus, Plaintiff must set forth facts sufficient

to establish each essential element of his case, or else his claims must be dismissed. Id. 

III. DISCUSSION

Plaintiff claims that he was discriminated and retaliated against due to his race. He alleges

claims against both Defendants under the NJLAD and §1981. The NJLAD prohibits racial

discrimination in the work place and §1981 prohibits racial discrimination in making and enforcing

contracts. Victor v. State of N.J., 203 N.J. 383 (2010)(NJLAD); CBOCS West, Inc. v. Humphries,

553 U.S. 442 (2008)(§1981). This Court will address in turn each Defendant’s motion for summary

judgment. 

A. Day & Zimmermann’s Motion for Summary Judgment

1. The McDonnell Douglas Burden Shifting Analysis

Discriminatory treatment claims brought under the NJLAD and §1981 are both analyzed

under the burden shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973). Monacao v. Am. Gen. Assur. Co., 359 F.3d 296, 300-05 (3d Cir. 2004) (discussing the

NJLAD); Estate of Oliva v. N.J., Dep't of Law & Pub. Safety, 604 F.3d 788, 798 (3d Cir. 2010)

(discussing §1981). 

The McDonnell Douglas analysis consists of three steps. First, the plaintiff must establish

a prima facie case of discrimination. Monaco, 385 F.3d at 300. To meet the burden at this step of

the analysis, the plaintiff-employee must produce evidence sufficient to “convince a reasonable fact

finder to find all of the elements of a prima facie case.” Keller v. Orix Credit Alliance, Inc., 130

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F.3d 1101, 1108 (D.N.J. 1997)(citation omitted). However, the “burden of establishing a prima facie

case of disparate treatment is not onerous.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

253 (1981). 

Once a prima facie case has been established, the second step of the McDonnell Douglas

analysis shifts the burden of production, but not the burden of persuasion, to the defendant-employer

to articulate a legitimate, non-discriminatory reason for terminating the employee. Stouch v. Twp

of Irvington, 354 Fed. App’x 660, 666 (3d Cir. 2009). “The employer satisfies this burden of

production by introducing evidence which, taken as true, would permit the conclusion that there was

a nondiscriminatory reason for the unfavorable employment decision.” Fuentes v. Perski, 32 F.3d

759, 763 (3d Cir. 1994). However, the employer need not prove that the tendered reason actually

motivated its behavior. Id. 

The third and final step of the McDonnell Douglas analysis shifts the burden of production

back to the plaintiff-employee to establish that the employer’s proffered reason is a pretext for

discrimination. “A plaintiff will survive summary judgment if she can produce evidence sufficient

‘to meaningfullythrow into question’ the employer’s reason for the allegedlydiscriminatoryaction.”

Reich, 2009 U.S. Dist. LEXIS 90540, at *29 (quoting Fuentes, 32 F.3d at 765). 

2. Plaintiff’s Discriminatory Discharge Claims Under the NJLAD and §1981

Assuming arguendo that Plaintiff has established a prima facie case of discrimination under

these claims, summaryjudgment is nonetheless appropriate because Plaintiff cannot meet his burden

on the third step of the McDonnell Douglas test – establishing that D&Z’s reason for terminating

him was pretextual. 

To avoid summary judgment at the pretext stage, “the plaintiff’s evidence rebutting the

employer’s proffered legitimate reasons must allow a fact finder to reasonably infer that each of the

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employer’s proffered nondiscriminatory reasons . . . was either a post hoc fabrication or otherwise

did not actually motivate the employer action.” Id. Stated differently, the plaintiff may demonstrate

pretext by directing the Court to evidence from which a reasonable factfinder could either (1)

“disbelieve the employer’s articulated legitimate reasons” or (2) “believe that an invidious

discriminatory reason was more likely than not a motivating or determinate cause of the employer’s

action.” Fuentes, 32 F.3d at 763. The non-moving plaintiff may do so by indicating “weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reason for its actions that a reasonable factfinder could rationally find them unworthy of

credence.” Keller, 130 F.3d at 1108-09. At survive summary judgment, the plaintiff “need only raise

doubt as to the legitimacy of the defendant's proffered reason for its adverse action; it need not prove

its discrimination case.” Andes v. N.J. City Univ., No. 10-2097, 2011 WL 1053619 (3d Cir. Mar.

24, 2011).

First, Plaintiff attempts to show pretext by pointing to alleged inconsistencies in whether

D&Z told Plaintiff that use of the PSE&G bathroom was prohibited. Second, Plaintiff asserts that

his termination was racially motivated as evidenced by the offensive remark that Stephenson

overheard in the trailer (i.e. “The n***er has got to go. He has been nothing but trouble.”).

Plaintiff’s attempt to show inconsistencies fails because it does not call into question the

explanation that Plaintiff and Stephenson were terminated for being found outside the work zone. 

Plaintiff concedes he was terminated minutes after being found outside the designated work area,

i.e., “at the stairs over the unit #1 wash room.” He also does not contest that “the reason advanced

at the time of the termination was simply being out of the work area.” Thus, Plaintiff was standing

in a location unknown to D&Z management, then went to use the PSE&G bathroom, was found

outside of the bathroom, and was terminated for being beyond the work zone. Plaintiff’s argument

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that he was never told he could not use the bathroom only reinforces that he was fired because of that

incident; it does not create an inference that D&Z fired him for any other reason. The argument fails

to show pretext because it does not demonstrate that there was a “real” reason that he was

terminated, which is not the reason D&Z has articulated. Andes v. New Jersey City Univ., 10-2097,

2011 WL 1053619 (3d Cir. Mar. 24, 2011). 

Stephenson, too, acknowledges that theywere terminated for being outside of the work zone,

but contests only that it was “because of a lack of communication” concerning where they were

supposed to be stationed. Significantly however, it is not enough to show that the employer made

a “wrong or mistaken” decision. Venter v. Potter, 2011 U.S. App. LEXIS 10948, 10-11 (3d Cir. Pa.

May 27, 2011)(citing Fuentes, 32 F.3d at 765). A legitimate miscommunication only supports the

inference that D&Z terminated the Plaintiff for what they genuinely believed to be an infraction of

their company policy. Furthermore, there is no evidence that D&Z was inconsistent in maintaining

why Plaintiff was terminated. Thus, Plaintiff fails to show inconsistencies or contradictions in

D&Z’s explanation that he was terminated for the actual and legitimate reason of being outside the

work zone. 

Second, in consideringwhether an “invidious discriminatoryreason” was a motivating factor

in Plaintiff’s termination, the statement Stephenson overheard is insufficient to demonstrate pretext

because the speaker is unknown. In evaluating pretext in discrimination cases, stray remarks have

little probative weight unless the Plaintiff can show that they were made by a known decision maker

and that they are sufficiently connected to the challenged employment action. See Price Waterhouse

v. Hopkins, 490 U.S. 228, 277 (1989)(considering stray remarks as insufficient evidence of

discriminatorymotive); See also Ezold v. Wolf, Block, Schorr &Solis-Cohen, 983 F.2d 509, 545 (3d

Cir. Pa. 1992) (finding stray remarks by non-decision makers onlyminimally probative, particularly

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where such statements are made in a context removed from the actual decision-making process). 

Here, the individual who uttered the statement is not known. Stephenson stated “I didn’t

know none of these people” and “I don’t really know that this man was the superintendent...I just

assumed this.” The statement is therefore not attributable to a known decision maker, as Stephenson

admits that he did not know the individual and his description of the speaker does not match any

D&Z employee. More problematic is that Stephenson described a number of individuals who he did

not know as “that supervisor” or “that superintendent,” illustrating that he used the term as a

common title for people he did not know. Plaintiff asserts that Stephenson reallymeant Dan Woods,

but Stephenson did not make such an assertion and there is nothing in the record to show that this

is anything more than an unsupported allegation. 

In addition, although all inferences must be drawn in favor of the Plaintiff, the record does

not support the inference that it was a D&Z employee who made the statement. Stephenson was

confident that the speaker acted like a supervisor but he could not say who the man worked for. In

his complaint, Plaintiff alleged that an agent “of one or both Defendants” made the comment, which

reinforces that the speaker’s employer is unknown. Further, Plaintiff does not even assert that only

D&Z employees were present in the trailer when the statement was made. Any number of

individuals, from Local 28 management to PSE&G employees, may have been in the trailer and may

have been “the superintendent” who uttered the alleged comment. Plaintiff has offered no evidence

bearing on whether the speaker had any connection with D&Z or D&Z’s decision to terminate him. 

The statement, therefore, is only a “stray remark” as the record does not support an inference that

the comment came from a “known decision maker” or was “sufficiently connected” to Plaintiff’s

termination. Walden v. Georgia-Pacific Corp., 126 F.3d 506, 521 (3d Cir. 1997)("comments by

those individuals outside of the decisionmaking chain are stray remarks, which, standing alone, are

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inadequate to support an inference of discrimination”). The remark is also of little probative value

because it was uttered after Plaintiff was terminated and it does not speak directly to why he was

terminated. Thus, it is insufficient to survive summary judgment. See Burrows v. Twp. of Logan,

415 Fed.Appx. 379, 383-84 (3d Cir. 2011)(finding stray remarks by individuals outside of the

decisionmaking chain insufficient to defeat summary judgment); See also Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-50 (1986) (“If the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted.”)(citations omitted).

The other comment Stephenson overheard (i.e. “You’re a good hand. We want to keep you.

And if we can, we want to lay you off for three days and then we’ll call you back to work.”) suffers

the same infirmities. Plaintiff does not allege that this statement came from a D&Z employee and

does not even hazard a guess as to who the speaker might have been. Equally significant, the

language itself – remarking Stephenson is a good employee and should be rehired – does not concern

the reason for Plaintiff’s termination. In sum, both of the statements Stephenson overheard are only

stray remarks which are insufficient for a fact-finder to reasonably disbelieve D&Z’s articulated

reason for terminating Plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252(1986) 1

(“The mere existence of a scintilla of evidence in support of the plaintiff's position will be

insufficient; there must be evidence on which the jury could reasonably find for the plaintiff”).

Finally, Plaintiff fails to show that he was terminated under circumstances from which a jury

 The overheard remarks are also hearsay as they are out-of-court statements offered for their 1

truth. The statements do not meet the hearsay exception for admissions by a party-opponent as

Plaintiff cannot show that speaker was an agent of D&Z or was speaking within the scope of

employment. See Rule 801(d)(2)(D). Plaintiff failed to address this issue in his brief. Thus, the

Court would be right to ignore the statements, as hearsay is inadmissible at summary judgment.

Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir.2009). However, because the Court is

ruling against the Plaintiff, the statements are considered despite their inadmissibility. 

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could infer pretext because he was terminated for the same infraction and at the same time as a

caucasian employee. Although this court is not entitled to weigh evidence, the Court must consider

“the entire situation as a whole on summary judgment, because the jury would be entitled to view

the evidence as a whole.” Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 285 (3d Cir.

2001). When the record is taken as a whole, a reasonable jury could not conclude that discriminatory

animus was a determinativeormotivating factor in D&Z’s decision to terminate the Plaintiff because

he was terminated alongside a caucasian co-worker for the same violation of company policy. 

Plaintiff has failed to “meaningfully throw into question the employer’s reason for the

allegedly discriminatory action.” Reich, 2009 U.S. Dist. LEXIS 90540, at *29. Accordingly,

Defendant’s motion for summary judgment as to Plaintiff’s discriminatory discharge claim is

granted.

3. Plaintiff’s Retaliation Claims Under the NJLAD and §1981

Plaintiff claims that he was retaliated against for making complaints to D&Z management

about his supervisor Pocci. The burden-shifting requirements of McDonnell Douglas similarlyapply

to retaliation claims. Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir.1997).

To establish a prima facie case of retaliation under the NJLAD, the Plaintiff must

demonstrate that: “(1) plaintiff was in a protected class; (2) plaintiff engaged in protected activity

known to the employer; (3) plaintiff was thereafter subjected to an adverse employment

consequence; and (4) that there is a causal link between the protected activity and the adverse

employment consequence.” Victor v. State of N.J., 203 N.J. 383, 409 (2010). 

The Supreme Court has determined that § 1981 also encompasses retaliation claims. CBOCS

West, Inc. v. Humphries, 128 S. Ct. 1951, 1954-55 (2008). To establish a prima facie case of

retaliation under §1981, the employee must show that (1) he engaged in protected activity, (2) his

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employer took an adverse employment action against him, and (3) there was a causal connection

between his participation in the protected activity and the adverse employment action. Estate of

Oliva v. N.J., Dep't of Law & Pub. Safety, Div. of State Police, 604 F.3d 788, 798 (3d Cir. 2010). 

D&Zcontends that Plaintiff cannot support a prima facie case of retaliation underthe NJLAD

or §1981 because he never engaged in protected activity that was known to a decision-maker – here,

Letsom and Woods. Specifically, D&Z maintains that Plaintiff is not protected because he made no

complaint to management that was related to racial discrimination. Plaintiff responds by claiming

that he made reports of discriminatory treatment about Pocci and that he was terminated because of

those complaints. However, just as with the claim for discrimination, Plaintiff fails to meet the

pretext requirement under the McDonnell-Douglas test. Plaintiff cannot show the he was terminated

under pretextual circumstances; thus,summaryjudgment is granted for D&Zon the retaliation claim. 

Setting the issue of pretext aside, the Court is also not satisfied that Plaintiff could

demonstrate a prima facie case of retaliation because the record does not reflect that he ever engaged

in protected activity, as required under the NJLAD and §1981. Under the NJLAD, a protected

activity is one where “that person has opposed any practices or acts forbidden by this act,” not where

a person has opposed general harassment. N.J.S.A. 10:5-12(d); Rene v. Lidestri Foods, Inc. Slip

Copy, 2010 WL 4807050 (D.N.J., 2010). Complaints about “unfair treatment in general” are not

protected activity. Barber v. CSX Distribution Services, 68 F.3d 694, 701-02 (3d Cir. 1995).

Although Plaintiff cites in his brief that he “did claim he was discriminated against at a

meeting,” specifically as a result of being poked by Pocci, there is no evidence Plaintiff complained

that Pocci’s actions were motivated by race. The record does not reflect that the Plaintiff’s

complaints concerned anything more than a racially-neutral dispute of a personal nature between he

and Pocci. Indeed, Plaintiff testified that Pocci treated the other African-American employees better

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than he, and that Pocci only poked him for being on the phone, not anyone else. The record reflects

only a personal dispute, with Plaintiff’s complaints to management insufficient to meet the standards

for protected activity. See Mitchell v. Western Union, 2007 U.S. Dist. LEXIS 92621 (D.N.J. Dec.

11, 2007)(the retaliation provision does not protect against action premised on “personal reasons”). 

Without evidence demonstrating that Plaintiff complained of racially discriminatory practices, there

can be no claim of retaliation. D&Z’s summary judgment motion as to Plaintiff’s retaliation claim

is granted.

B. Local 28's Motion for Summary Judgment

Where a plaintiff contends that a labor organization is liable for discrimination engaged in

by an employer, the Third Circuit precludes a finding of union liability in the absence of evidence

that the union “instigated or actively supported” the underlying acts of discrimination. Hubbell v.

World Kitchen, LLC, 717 F. Supp. 2d 494, 499 (W.D. Pa. 2010)(citing Anjelino v. N.Y. Times Co.,

200 F.3d 73, 95 (3d Cir. 1999)); Skoorka v. Kean Univ., 2007 U.S. Dist. LEXIS 74214 (D.N.J. Oct.

4, 2007). 

Plaintiff alleges that because Steve Pocci and Joe Coe were Local 28 members and 

“orchestrated” Plaintiff’s discriminatory termination, Local 28 should be held liable. Plaintiff also

briefly asserts that the union steward, Tsakonas, failed to take proper action when Plaintiff filed

complaints with Local 28. Local 28 maintains that they act only as a referral source for its members,

and they have no responsibility for any alleged racial discrimination occurring on the job site, even

if some of the D&Z employees were also members of Local 28. Local 28 also denies any unfair

representation and asserts that in any event, such a claim is not before this Court. 

Because summary judgment was granted for D&Z on all claims, Plaintiff’s claim based on

the actions of Pocci and Coe similarly fail as there is no genuine issue of material fact that Plaintiff’s

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race influenced their actions. Even assuming arguendo that this Court had found otherwise,

summary judgment would still be appropriate on this issue as Plaintiff fails to address Local 28’s

assertion that they cannot be held liable for the actions of those individuals acting in their capacity

as D&Z employees. Indeed, there is no vicarious liability of a union and the record contains no 2

evidence that Local 28 itself instigated or actively supported the discriminatory acts allegedly

experienced by the appellants. Anjelino, 200 F.3d at 95-96; Hubbell, 717 F.Supp.2d at 499; 

E.E.O.C. v. Pipefitters Ass'n Local Union 597, 334 F.3d 656, 658 (7th Cir. 2003). 

The only other avenue on which Plaintiff could prevail is a showing that the grievance

process was abandoned for discriminatory reasons. Hubbell, 717 F.Supp.2d at 499. Plaintiff does

briefly assert that Tsakonas, who was acting solely as an employee of Local 28, failed to take action

after Plaintiff made complaints of unfair treatment. Specifically, Plaintiff argues that Tsakonas

failed to represent Plaintiff’s interests by neglecting to inform project manager Letsom of Plaintiff’s

complaints, as required under the Local 28's National Maintenance Agreement. However, Plaintiff

does not point the Court to anywhere in the record that evidences that Plaintiff ever made a

complaint to Tsakonas concerning racial discrimination. In addition, the record contains no details

of any meeting between Tsakonas and the Plaintiff. Further, Plaintiff has not asserted that the

alleged failure to pursue the grievance process was motivated by “discriminatory reasons,” as is

required under the NJLAD and §1981. Anjelino, 200 F.3d at 95. The record simply does not reflect

any interactions whatsoever with Tsakonas or Local 28 that would give rise to a claim under the

NJLAD or §1981. 

In sum, the record does not reflect any discriminatory or retaliatory actions by Local 28. 

 Strikingly, Plaintiff cites no legal authority in his brief in opposition to Local 28's motion for 2

summary judgment.

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Because Plaintiff fails to establish a genuine issue of material fact of discriminatory or retaliatory

treatment under the NJLAD or §1981, summary judgment is granted in favor of Local 28. 

IV. CONCLUSION

For the reasons set forth above, Defendants’ motions for summary judgment are granted. 

This matter is dismissed with prejudice. 

s/Peter G. Sheridan 

PETER G. SHERIDAN, U.S.D.J. 

July 22, 2011

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