UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HOSMAY JORRIN,

 Plaintiff,

v.

LIDESTRI FOODS, INC., et al.,

 Defendants.

Civil No. 11-2064 (NLH/AMD)

OPINION

APPEARANCES:

Daniel T. Silverman, Esquire

Kevin M. Costello, Esquire 

Costello & Mains, P.C. 

18000 Horizon Way 

Suite 800 

Mount Laurel, New Jersey 08054 

Attorneys for Plaintiff Hosmay Jorrin

Douglas Diaz, Esquire 

Archer & Greiner, P.C. 

One Centennial Square 

Haddonfield, New Jersey 08033 

Attorney for Defendant Lidestri Foods, Inc.1

HILLMAN, District Judge

This matter comes before the Court by way of Defendant

Lidestri Foods, Inc.’s motion [Doc. No. 19] seeking summary

 Although Plaintiff’s complaint also names Lidestri Food 1

and Beverage, Lidestri Food and Beverage d/b/a Lidestri Foods,

Inc., and Lidestri Foods d/b/a Lidestri Food and Beverage as

defendants in this case, the record reflects that Lidestri Foods,

Inc. is the proper Defendant and that these remaining names are

simply “doing business as” designations of Lidestri Foods, Inc. 

(See Notice of Removal [Doc. No. 1] ¶ 1.) 

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judgment pursuant to Federal Rule of Civil Procedure 56. The

Court has considered the parties’ submissions and decides this

matter pursuant to Federal Rule of Civil Procedure 78. 

For the reasons expressed below, Defendant’s motion for

summary judgment is granted. 

I. JURISDICTION

Plaintiff originally filed the complaint in this action in

the Superior Court of New Jersey, Camden County, Law Division

asserting claims of sexual harassment, retaliation, and

retaliatory termination in violation of the New Jersey Law

Against Discrimination (“NJLAD”). Defendant Lidestri Foods, Inc.

(“Lidestri”) removed the action to this Court pursuant to 28

U.S.C. § 1441, et seq., asserting original jurisdiction exists

over Plaintiff’s state law claims based on diversity of

citizenship.

The Court exercises jurisdiction in this case pursuant to 28

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

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

Plaintiff Hosmay Jorrin is a citizen of the state of New Jersey. 

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

incorporated in, and maintains its principal place of business

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

controversy is met because the allegations contained in

Plaintiff’s complaint sufficiently demonstrate that the damages

2

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

costs.2

II. BACKGROUND

The basic facts of this case are largely undisputed and

relate to Plaintiff’s allegations that he was subjected to sexual

harassment and retaliation during his employment at Lidestri. In

April of 2008, Plaintiff, a Hispanic male, was hired to work for

Lidestri as a forklift operator at its Pennsauken, New Jersey

manufacturing facility. (Lidestri’s Statement of Undisputed

Material Facts [Doc. No. 19-3] (hereinafter, “Lidestri’s

Statement”), ¶¶ 1-2; Pl.’s Reply to Def.’s Statement of

Undisputed Material Facts [Doc. No. 23-1] (hereinafter, “Pl.’s

Statement”), ¶¶ 1-2.) Lidestri’s Pennsuaken facility consists of

two separate buildings: a warehouse building known, as the “1600

Building,” and a production building where the receiving dock was

located, known as the “1550 Building.” (Lidestri’s Statement ¶

1; Pl.’s Statement ¶ 1.) 

During the course of his employment, Plaintiff worked in the

1550 Building and he considered warehouse shift manager, Roger

The record reflects that Roger Carter, while named as a 2

defendant, was not served within 120 days of the filing of the

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

and it appears that Plaintiff has abandoned any claims asserted

against Carter in this action and is proceeding only against the

corporate defendant, Lidestri. Pursuant to Rule 4(m), the Court

dismisses Plaintiff’s action against Carter without prejudice,

and exercises jurisdiction over the real parties in interest here

pursuant to 28 U.S.C. § 1332.

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Valladares, to be his “main supervisor.” (Lidestri’s Statement ¶

2, 21; Pl.’s Statement ¶ 2, 21.) In the fall of 2010, the time

period relevant to this action, Plaintiff worked the second shift

at the 1550 Building, but did not work on Fridays. (Lidestri’s

Statement ¶ 20; Pl.’s Statement ¶ 20.) Near the end of September

2010, another warehouse shift manager, Michael Shaw, began

working the second shift on both Thursday and Fridays. 

(Lidestri’s Statement ¶¶ 14, 19; Pl.’s Statement ¶ 14, 19.) 

Shaw’s primary responsibility at Lidestri was oversight of the

1600 Building where his office was located. (Lidestri’s

Statement ¶ 15; Pl.’s Statement ¶ 15.) However, while working

the second shift Shaw “would see the employees in the 1550

[B]uilding maybe two or three times a day in passing just to

ensure the employees were performing their assigned tasks.” 

(Lidestri’s Statement ¶ 23; Pl.’s Statement ¶ 23.)

On December 13, 2010, Kathleen Jehens, Lidestri’s Human

Resources Manager at the Pennsuaken facility, received a letter

written by Plaintiff advising Lidestri that he had been sexually

harassed by Shaw while working his Thursday shifts in the 1550

Building. (Lidestri’s Statement ¶¶ 39-43; Pl.’s Statement ¶¶ 39-

43; see also Undated Letter from Plaintiff, Ex. 9 to Lidestri’s

Statement, 1.) Shaw’s conduct toward Plaintiff included the

following: (1) a statement by Shaw to Plaintiff that “with that

sexy accent you should f[***] a lot of b[******]”; (2) a

4

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statement by Shaw that Plaintiff’s “hairless face” was “sexy”;

(3) conduct wherein Shaw would touch or rub Plaintiff’s shoulder;

(4) conduct wherein Shaw would rub his own nipples in front of

Plaintiff; and (5) Shaw’s statement to Plaintiff that Shaw “did

not fight, he scratches.” (Lidestri’s Statement ¶ 27; Pl.’s

Statement ¶ 27.) Plaintiff classified Shaw’s conduct as an

attempt “to play sexual games with” Plaintiff which made

Plaintiff feel “disrespected” as a man. (Lidestri’s Statement ¶

26; Pl.’s Statement ¶ 26.) Plaintiff also alleged that on one

particular Thursday in early December 2010, while Plaintiff was

working in the glass line area of the 1550 Building, Shaw

approached Plaintiff from behind and rubbed against Plaintiff

with Shaw’s midsection, including his penis. (Lidestri’s

Statement ¶ 35; Pl.’s Statement ¶ 35.) 

Upon receipt of Plaintiff’s letter on December 13, 2010,

Jehens began an internal investigation into Plaintiff’s

allegations against Shaw commencing the following morning on

December 14, 2010. (Lidestri’s Statement ¶ 44; Pl.’s Statement 3

¶ 44.) Moreover, Lidestri removed Shaw from serving as

Plaintiff’s shift manager on Thursdays after receipt of the

 Jehens apparently commenced the investigation on December 3

14, 2010 because she did not receive Plaintiff’s letter until

late in the afternoon on December 13, 2010 at approximately 4:45

p.m. (Ex. 1 to Lidestri’s Statement, Certification of Jehens ¶

11.)

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letter. (Lidestri’s Statement ¶ 45; Pl.’s Statement ¶ 45.) 4

Jehens’ investigation consisted of interviews of ten Lidestri

employees from December 14, 2010 through December 21, 2010,

including Plaintiff and Shaw. (Lidestri’s Statement ¶¶ 46-47,

49; Pl.’s Statement ¶¶ 46-47, 49.) After Jehens completed her

investigation, she advised Jane Oca, Lidestri’s Corporate Human

Resources Manager, of what the employees reported in the

interviews. (Lidestri’s Statement ¶ 57; Pl.’s Statement ¶ 57.) 

Oca then discussed the matter with Lidestri’s Vice-President,

Donna Yanicky, and the Director of the Warehouse, Lee Biscardi,

who collectively decided to terminate Shaw’s employment. 

(Lidestri’s Statement ¶ 58; Pl.’s Statement ¶ 58.) Shaw was

terminated from Lidestri on December 22, 2010, approximately

eleven (11) days after Jehens first received Plaintiff’s letter. 

(Lidestri’s Statement ¶ 59; Pl.’s Statement ¶ 59.)

Plaintiff contends that after Shaw was terminated other

warehouse shift managers at Lidestri, specifically Roger Carter

and Michael DiMaio, retaliating against Plaintiff by going to

Plaintiff’s worksite every day to check on him, by “overchecking”

on Plaintiff, and by returning to Plaintiff’s worksite again at

 The record reflects that Lidestri decided to suspend 4

Shaw’s employment during the course of the internal investigation

beginning on December 14, 2010. (Ex. 11 to Lidestri’s Statement,

Tr. of Oca’s Dep. 26:18-27:7.) 

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night for an additional visit. (Lidestri’s Statement ¶¶ 77-79; 5

Pl.’s Statement ¶¶ 77-79.) Several weeks later, on January 13,

2011, Lidestri terminated Plaintiff’s employment on the basis of

insubordination and cursing at a supervisor in relation to an

alleged incident which occurred that same day between DiMaio and

Plaintiff. (Lidestri’s Statement ¶¶ 72-76.) Plaintiff denies

that he engaged in any form of insubordination or cursing, and

that he was terminated in retaliation for having made a complaint

of sexual harassment. (Pl.’s Statement ¶ 72.)

Based on these facts, Plaintiff brings a three count

complaint asserting a claims for sexual harassment, retaliation,

and retaliatory discharge in violation of the NJLAD. As to his

claim for sexual harassment, Plaintiff alleges that Lidestri is

responsible for Shaw’s conduct based on Shaw’s status as a

supervisor, because Lidestri failed to reasonably promulgate a

policy prohibiting such harassment, and because the harassment

Plaintiff experienced qualifies as sexual harassment under the

NJLAD. (Compl. ¶¶ 33-35.) Plaintiff further claims that he

engaged in protected conduct under the NJLAD by complaining of

Shaw’s conduct, which was a determinative and motivating factor

in the severe and pervasive retaliatory harassment he was

subjected to. (Id. ¶ 38.) Finally, with respect to his

 Plaintiff disputes that “it was Carter’s sole intention” 5

to check on Plaintiff because “Carter’s action were done in an

intimidating fashion.” (Pl.’s Statement ¶ 78.) 

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termination, Plaintiff contends that shortly after he engaged in

this protected conduct, he was terminated and “his membership in

a protected group and ... his protected conduct under the LAD”

were determinative and motivating causes for his discharge. (Id.

¶¶ 41-42.) 

III. DISCUSSION

A. Summary Judgment Standard

In the present motion, Lidestri seeks the entry of summary

judgment in its favor on all of Plaintiff’s claims under the

NJLAD. Summary judgment is appropriate where the Court is

satisfied that “‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

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

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

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

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

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

that a reasonable jury could return a verdict in the nonmoving

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

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

substantive law, a dispute about the fact might affect the

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

judgment, a district court may not make credibility

determinations or engage in any weighing of the evidence;

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

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

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

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

Initially, the moving party bears the burden of

demonstrating the absence of a genuine issue of material fact. 

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

always bears the initial responsibility of informing the district

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

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

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

it believes demonstrate the absence of a genuine issue of

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

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

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

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

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

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

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

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

at 325). 

Once the moving party has met this burden, the nonmoving

party must identify, by affidavits or otherwise, specific facts

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

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

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

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

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

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

establish the existence of [every] element essential to that

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

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

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

withstand a properly supported motion for summary judgment, the

nonmoving party must identify specific facts and affirmative

evidence that contradict those offered by the moving party. 

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

B. NJLAD Sexual Harassment Hostile Environment Claims 

As the New Jersey Supreme Court has long recognized, “New

Jersey has a strong interest in maintaining ‘discrimination-free

workplace[s]’ for workers.” Cutler v. Dorn, 955 A.2d 917, 923

(N.J. 2008) (citing Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d 445,

452 (1993)). The NJLAD makes it an unlawful 

[f]or an employer, because of the race, creed,

color, national origin, ancestry, age, marital

status, affectional or sexual orientation, sex ...

of any individual, ... to refuse to hire or employ

or to bar or to discharge ... from employment such

individual or to discriminate against such

individual in compensation or in terms, conditions

or privileges of employment.

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Lehmann, 626 A.2d at 452 (citing N.J. STAT. ANN. § 10:5–12(a)).6

More recently the New Jersey Supreme Court reiterated that

“the basic requirements for determining whether workplace acts of

sexual harassment constitute prohibited discrimination under the

LAD” were established in Lehmann. Cutler, 955 A.2d at 924. 

Specifically, the New Jersey Supreme Court requires a plaintiff

claiming a hostile workplace based on acts of sexual harassment

to prove that

the complained-of conduct (1) would not have occurred

but for the employee's gender; and it was (2) severe

or pervasive enough to make a (3) reasonable woman

believe that (4) the conditions of employment are

altered and the working environment is hostile or

abusive.

Cutler, 955 A.2d at 924 (citing Lehmann, 626 A.2d at 453).7

 The current version of Section 10:5-12(a) now also 6

prohibits discrimination or harassment based on civil union

status, domestic partnership status, genetic information, gender

identity or expression, and disability. N.J. STAT. ANN. § 10:5-

12(a) (West 2013). 

Citing to Lehmann, Lidestri argues on that to establish a 7

hostile work environment claim under the NJLAD a plaintiff “must

prove: (1) he suffered intentional discrimination which would not

have occurred but for his gender, (2) the discrimination was

severe or pervasive, (3) the discrimination detrimentally

affected him, (4) the discrimination would detrimentally affect a

reasonable person of similar gender in the position, and (5) the

existence of respondeat superior liability.” (Br. of Def.

Lidestri Foods, Inc. in Supp. of its Mot. for Summ. J. [Doc. No.

19-1] (hereinafter, “Def.’s Br.”), 9-10.) 

The Court notes that the elements recited by Lidestri are

not actually the elements delineated by the New Jersey Supreme

Court in Lehmann. It appears that Lidestri is relying on a

formulation of the elements required for a sexual harassment

hostile work environment claim brought under Title VII of the

Civil Rights Act announced by the Third Circuit in Andrews v.

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Although the Lehmann standard is couched in terms of a

“reasonable woman” — the relevant consideration in the majority

City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). 

However, in Lehmann, the New Jersey Supreme Court, “[r]ather than

risking confusion by engrafting major revisions to the Andrews

test, ... announce[d] a new test” with respect to sexual

harassment hostile work environment claims. 626 A.2d at 453. 

In Lehmann, the Court expressly rejected Andrews’

requirement that a plaintiff show the employer’s discrimination

or harassment was intentional. Id. at 454 (“The LAD is not a

fault- or intent-based statute. A plaintiff need not show that

the employer intentionally discriminated or harassed her, or

intended to create a hostile work environment.”) The Court also

explicitly considered but abandoned that portion of Andrews which

examined a plaintiff’s subjective viewpoint of the alleged

harassment and opted instead for an objective standard. Id. at

457-58 (“[W]e choose an objective rather than a subjective

viewpoint because the purpose of the LAD is to eliminate real

discrimination and harassment.”); see also Cutler, 955 A.2d at

924 (“[N]either ‘a plaintiff's subjective response’ to the

harassment,... nor a defendant's subjective intent when

perpetrating the harassment, ... is controlling of whether an

actionable hostile environment claim exists. Whether harassing

conduct makes a work environment hostile is assessed by use of a

reasonable person standard.”)

Lidestri also relies on Kunin v. Sears Roebuck & Co., 175

F.3d 289, 293 (3d Cir. 1999) for the proposition that Plaintiff

must establish the existence of respondeat superior liability on

his sexual harassment claim, but the Court notes that this

element similarly stems from the Third Circuit’s holding in

Andrews. However, the New Jersey Supreme Court has held “that

employer liability for supervisory hostile work environment

sexual harassment [under the NJLAD] shall be governed by agency

principles.” Lehmann, 626 A.2d at 461. Accordingly, “an

employer whose supervisory employee is acting within the scope of

his or her employment will be liable for the supervisor's conduct

in creating a hostile work environment” as well as those

situations where the “supervisor is acting outside the scope of

his or her employment,” but the supervisor's behavior falls

within one of the exceptions outlined by Section 219(2) of the

Restatement (Second) of Agency. Id. at 462.

Thus, to the extent Lidestri asserts arguments inconsistent

with New Jersey law, the Court disregards those arguments in

ruling on the present motion.

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of cases — the standard clearly “applies to sexual harassment of

women by men, men by women, men by men, and women by women. The

LAD protects both men and women and bars both heterosexual and

homosexual harassment.” 626 A.2d at 454. Thus, when the

plaintiff is male, as is the case here, the only difference in

the standard is that a male plaintiff must “allege conduct that a

reasonable man would believe altered the conditions of his

employment and created a working environment that was hostile to

men.” Id.

B. Retaliation Under the NJLAD

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

any person because that person has opposed any practices or acts

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

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

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

Court, 

the protection against retaliation embodied in

the LAD is broad and pervasive, and must be seen

as necessarily designed to promote the integrity

of the underlying antidiscrimination policies of

the Act by protecting against reprisals “any

person” who has sought to protect his or her own

rights not to be discriminated against or who has

acted to support such conduct.

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

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

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

To establish a prima facie case for retaliation under the

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

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

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

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

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

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

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

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

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

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

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

proffer of a legitimate, non-retaliatory reason for the

challenged adverse employment decision, “the plaintiff must come

forward with evidence of a discriminatory motive of the employer,

and demonstrate that the legitimate reason was merely a pretext

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

1142.

IV. ANALYSIS

Lidestri argues that summary judgment is appropriate in this

case because: (1) Plaintiff has failed to demonstrate that the

conduct at issue on his sexual harassment claim was sufficiently

severe or pervasive enough to make a reasonable man believe the

conditions of his employment were altered and the working

environment was hostile or abusive; 2) Lidestri is not

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vicariously liable for Shaw’s conduct; and (3) Plaintiff has

failed to establish a prima facie case of retaliation, and that

even if he could, Plaintiff cannot demonstrate that Lidestri’s

legitimate non-retaliatory reason for terminating Plaintiff was a

pretext.

A. Sexual Harassment Hostile Environment Claim

Lidestri’s Liability as Plaintiff’s Employer

Even assuming that Plaintiff could demonstrate that Shaw’s

conduct was sufficiently severe or pervasive enough to make a

reasonable man believe the conditions of employment were altered

and the working environment was hostile, Plaintiff has failed to 8

 Lidestri argues that Shaw’s conduct was not objectively 8

severe or pervasive such that a reasonable man would have

believed that the conditions of his employment were altered and

the working environment was hostile or abusive. (Id.); see

Lehmann, 626 A.2d at 453-54. 

Assessing whether the alleged harassing conduct is severe or

pervasive, requires an examination of the totality of the

circumstances as opposed to consideration of each incident in

isolation. Cutler, 955 A.2d at 924. Here, the Court “must

consider the cumulative effect of the various incidents, bearing

in mind that each successive episode has its predecessors, that

the impact of the separate incidents may accumulate, and that the

work environment created may exceed the sum of the individual

episodes.” Lehmann, 626 A.2d at 455 (citations and internal

quotations omitted). Under this standard, it is “the cumulative

impact of separate successive incidents that cements the hostile

work environment.” Cutler, 955 A.2d at 925. 

In evaluating severity or pervasiveness the Court considers

the nature of the conduct itself, “rather than the effect of the

conduct on any particular plaintiff.” El-Sioufi v. St. Peter's

Univ. Hosp., 887 A.2d 1170, 1190 (N.J. Super. Ct. App. Div.

2005). Thus, “whether an environment is hostile or abusive can

be determined only [by] looking at all the circumstances, which

may include the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or

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demonstrate a genuine issue of material fact supporting the

a merely offensive utterance; and whether it unreasonably

interferes with an employee's work performance.” El-Sioufi, 887

A.2d at 1190 (citations and internal quotations omitted). 

We consider this issue a close call. First, we note that

the defendant certainly considered it severe enough to terminate

Shaw. On the one hand, much of Shaw’s conduct was verbal in

nature and could be fairly described as teasing or off-hand

remarks. In this regard, it is important to note though that

“not every offensive remark, even if direct, is actionable. ...

epithets or comments which are merely offensive will not

establish a hostile work environment claim.” El-Sioufi, 887 A.2d

at 1190 (citations and internal quotations omitted). The NJLAD

“is not intended to be a ‘general civility code’ for conduct in

the workplace ... Discourtesy or rudeness should not be confused

with ... harassment, and a ‘lack of ... sensitivity’ does not,

alone, amount to actionable harassment. Thus, ‘simple teasing,’

offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the ‘terms

and conditions’ of employment.” Heitzman v. Monmouth Cnty., 728

A.2d 297, 304 (N.J. Super. Ct. App. Div. 1999), overruled on

other grounds, Cutler, 955 A.2d 917(2008). That having been

said, “in certain circumstances, even a single [incident] can be

so severe as to pollute the work environment, rendering it

irretrievably hostile.” Cutler, 955 A.2d at 925 n.7. While it

does not appear that Shaw’s actions interfered with Plaintiff’s

ability to perform his job duties, his conduct exceeded mere offhanded comments. In addition to repeated, unexplained, and

potentially offensive touching of the Plaintiff’s shoulder, Shaw

also touched himself in a sexually suggestive way. More

disturbing is the contention that Shaw rubbed Plaintiff from

behind with his midsection and penis, a form of physical assault,

and therefore physically threatening or humiliating. Moreover,

Shaw’s remarks explicitly referenced sexual acts. In addition,

this behavior was observed by others and occurred in conjunction

with sexually offensive conduct by Shaw toward another employee. 

We are unable to conclude that the totality of these

circumstances here are not sufficiently severe and pervasive as a

matter of law. These were not isolated acts but part of a

practice and pattern. It might fairly be said that it was “the

cumulative impact of separate successive incidents that cements

the hostile work environment.” Cutler, 955 A.2d at 925. In any

event, in light of our determination that Shaw was not a

supervisor and the Lidestri had a vigorous anti-discrimination

policy in place that worked, we need not resolve this issue.

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imposition of vicarious liability on Lidestri for Shaw’s conduct

and thus Lidestri is still entitled to summary judgment on

Plaintiff’s sexual harassment hostile work environment claim. 

Plaintiff makes two arguments relevant to Lidestri’s liability

asserting first that Lidestri is vicariously liable for Shaw’s

actions because Shaw was a supervisor capable of controlling

Plaintiff’s work environment. (Pl.’s Opp’n 3.) Additionally,

Plaintiff contends Lidestri is liable for its “failure to publish

and train upon an effective [anti-sexual harassment] policy for

all employees.” (Id.)

(i) Whether Shaw Qualifies as a Supervisor

An employer’s liability under the NJLAD for claims related

to sexual harassment by a supervisor is largely dependant upon

the facts of a particular case. Lehmann, 626 A.2d at 464. 

Generally, an employer can be held vicariously liable for conduct

of a supervisor where the supervisor acted within the scope of

his or her employment. Id. Additionally, in the more common

situation where the supervisor acted outside the scope of his or

her employment, the employer can be held vicariously liable “if

the employer contributed to the harm through its negligence,

intent, or apparent authorization of the harassing conduct, or if

the supervisor was aided in the commission of the harassment by

the agency relationship.” Id.; see also Herman v. Coastal Corp.,

791 A.2d 238, 251 (N.J. Super. Ct. App. Div. 2002) (explaining

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that an employer cannot be held liable for sexual harassment

under the NJLAD “in the absence of a showing that the harassing

employee was acting within the scope of his employment, or that

the employer was negligent, or had intended the conduct.”)

Thus, as explained by the New Jersey Supreme Court in

Lehmann, “an employer can be held liable for compensatory damages

stemming from a supervisor’s creation of a hostile work

environment” in one of three circumstances: (1) where “the

employer grants the supervisor the authority to control the

working environment and the supervisor abuses that authority to

create a hostile work environment[;]” or (2) where “the employer

ha[s] actual or constructive notice of the harassment[;]” or (3)

where, in the absence of actual or constructive notice, “the

employer negligently or recklessly failed to have an explicit

policy that bans sexual harassment and that provides an effective

procedure for the prompt investigation and remediation of such

claims.” 626 A.2d at 464. 

“A supervisor has a unique role in shaping the work

environment. Part of a supervisor's responsibilities is the duty

to prevent, avoid, and rectify invidious harassment in the

workplace.” Herman, 791 A.2d at 252. Determining precisely

which employees qualify as supervisors “for purposes of vicarious

liability for compensatory damages” depends upon the “functional

assignments” those employees maintain in the workplace. Cavuoti

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v. New Jersey Transit Corp., 735 A.2d 548, 558 (1999). Moreover,

the use of “a mere title of ‘manager’ or ‘supervisor’ does not by

itself suffice to impute that employee’s knowledge or actions to

the employer.” Id. at 557-58. Putting aside arbitrary position

titles utilized by any given employer then, generally “a

supervisor has the authority to hire, fire, discipline, control

employees’ wages or control employees’ schedules.” Herman, 791

A.2d at 254 (citing Cavuoti, 735 A.2d at 558). As recognized by 

New Jersey courts, “[a]n employer is generally liable for a

hostile work environment created by a supervisor because the

power an employer delegates to a supervisor ‘to control the

day-to-day working environment’ facilitates harassing conduct.” 

Herman, 791 A.2d at 254 (citation omitted); see also Lehmann, 626

A.2d at 462.

To determine whether an offending employee qualifies as a

supervisor, the Court must consider “whether the power the

offending employee possessed was reasonably perceived by the

victim, accurately or not, as giving that employee the power to

adversely affect the victim’s working life.” Entrot v. BASF

Corp., 819 A.2d 447, 459 (N.J. Super. Ct. App. Div.2003). 

Relevant factors in this determination include the power to fire

or demote, the power to direct job functions, and any evidence

that the alleged harasser possessed influence to control the

workplace or restrict the alleged victim's freedom to ignore the

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alleged conduct. Id. 

Here, Plaintiff has failed to establish sufficient facts

from which a reasonable jury could find that Shaw qualifies as a

“supervisor” under the NJLAD for purposes of holding Lidestri

vicariously liable for his conduct. Although Shaw’s job title

was that of a warehouse shift manager, the record demonstrates

that Shaw did not have any power to fire or demote Plaintiff, to 9

set Plaintiff’s schedule, or to exercise control over Plaintiff’s

wages or any other form of compensation Plaintiff received. The

record also establishes that Shaw did not have any power to

discipline Plaintiff. In particular, it appears that warehouse

shift managers like Shaw, Valladares, and DiMaio, only had

authority to report disciplinary issues to Human Resources by

completing Employee Disciplinary Reports. (Employee Disciplinary

Reports, Ex. 14 to Lidestri’s Statement 1-6.) These managers,

however, did not make the final determination of disciplinary

claims because Employee Disciplinary Reports required that a

Personnel Department (Human Resources) employee, typically

Jehens, sign off on the Report. (Id.) 

Perhaps the most telling evidence of whether Plaintiff

reasonably perceived Shaw as possessing the power to adversely

 In this regard, the record makes clear that decisions 9

regarding terminations and demotions were handled by Jehens in

Human Resources with the guidance or approval of Oca, the

Corporate Human Resources Manager. 

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affect Plaintiff’s working life is the testimony of Plaintiff

himself. Plaintiff testified that while all the warehouse shift

managers were his supervisors, he considered Roger Valladares to

be his main supervisor at Lidestri and that the other supervisors

“were just covering” on other days of the week. (Ex. 2 to

Lidestri’s Statement, Tr. of Pl.’s Dep. 85:22-24, 86:5-8.) 

Plaintiff explicitly indicated that the other supervisors, like

Shaw, “didn’t have anything to do with us, they were not our

supervisors.” (Id.) This testimony leaves no doubt that

Plaintiff did not perceive Shaw as a supervisor who possessed

power to adversely affect Plaintiff’s work environment. 

It is also undisputed that Shaw’s main responsibility was

oversight of the 1600 Building where his office was located, and

that he only came by the 1550 Building where Plaintiff worked

approximately two or three times a day in passing to ensure that

the employees were completing their assignments. Accordingly,

the record reflects that Shaw did not possess any notable degree

of control over Plaintiff’s day-to-day work environment in the

1550 Building particularly where Plaintiff only worked with Shaw

one day a week on Thursdays. No reasonable jury could infer that

these infrequent and minimal visits one day a week by another

“supervisor” who was “just covering” for Plaintiff’s “main

supervisor” and who “didn’t have anything to do” with Plaintiff, 

amounted to day-to-day control over Plaintiff’s working

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environment in the 1550 Building. 

Even assuming Plaintiff perceived Shaw as possessing some

sort of power over Plaintiff, this perception certainly did not

restrict Plaintiff’s freedom and ability to ignore Shaw’s

conduct. Specifically, Plaintiff repeatedly testified at his

deposition that he typically responded to Shaw’s conduct by

indicating his disapproval including through the use of explicit

language, by protesting Shaw’s attempt to “play games” with

Plaintiff, by walking away, and by pretending not to see Shaw. 

(See Ex. 2 to Lidestri’s Statement, Tr. of Pl.’s Dep. 59:2-15,

61:6-11, 64:12-13, 65:11-16, 19-20, 77:2-7; see also Pl.’s

Further Statement of Undisputed Material Facts ¶ 28.)

Plaintiff, as the party opposing summary judgment on this

issue, is required to identify specific facts and affirmative

evidence that contradict those offered by Lidestri. Plaintiff

has failed to do so here and argues only that “the harassment was

in fact conducted by a supervisor, that same supervisor was aware

of his own conduct” and “[t]hus, Defendant had knowledge of the

same through its agents to whom they delegated responsibility.” 

(Pl.’s Br. 8.) The New Jersey Supreme Court has expressly

rejected Plaintiff’s argument and held that “a mere title of

‘manager’ or ‘supervisor’ does not by itself suffice to impute

that employee’s knowledge or actions to the employer.” Cavuoti,

735 A.2d at 558. To impose liability on Lidestri for Shaw’s

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conduct, Plaintiff was required to demonstrate more. He has

failed to do so and thus Lidestri is entitled to summary judgment

on Plaintiff’s sexual harassment claim because Shaw does not

qualify as a supervisor under the NJLAD.

(ii) Maintenance of an Anti-Harassment Policy

As an alternative basis for liability, Plaintiff argues that

Lidestri negligently failed to publish and conduct training

pursuant to an effective anti-sexual harassment policy for all

employees. (Pl.’s Br. 3.) Under New Jersey law, courts “adhere

to the principle that if an employer has exercised due care in

acting to prevent a sexually discriminatory hostile work

environment, vicarious liability should not attach. The

establishment of an effective anti-sexual harassment workplace

policy and complaint mechanism evidences an employer’s due care

and may provide affirmative protection from vicarious liability.” 

Gaines v. Bellino, 801 A.2d 322, 323 (N.J. 2002); see also

Cavuoti, 735 A.2d at 556 (recognizing that New Jersey law

“afford[s] a form of a safe haven [from vicarious liability for

the harassing conduct of an employee] for employers who

promulgate and support an active, anti-harassment policy.”) 

In order for an employer to enjoy the benefit of that safe

haven from vicarious liability based on maintaining an active

anti-harassment policy, the following circumstances are

“relevant: periodic publication of the employer's anti-harassment

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policy, the presence of an effective and practical grievance

process for employees to use, and training for workers,

supervisors, and managers concerning how to recognize and

eradicate unlawful harassment.” Gaines, 801 A.2d at 330 (citing

Cavuoti, 735 A.2d at 556). 

Additionally, “[a]n employer has a clear duty not only to

take strong and aggressive measures to prevent invidious

harassment, but also to correct and remediate promptly such

conduct when it occurs.” Herman, 791 A.2d at 252 (citing Payton

v. New Jersey Turnpike Auth., 691 A.2d 321, 327-28 (1997)). As

the New Jersey Supreme Court noted in Gaines, “[t]he efficacy of

an employer's remedial program is highly pertinent to an

employer’s defense” that its actions absolve it from all

liability for a plaintiff’s claims. 801 A.2d at 330 (citing

Payton, 691 A.2d at 327). “‘[E]ffective’ remedial measures ...

include the process by which the employer arrives at the

sanctions that it imposes on the alleged harasser” and are

reviewed in light of the “investigation—including [its]

timeliness, thoroughness, [the] attitude toward the allegedly

harassed employee, and the like—as well as by the result[.]” 

Payton, 691 A.2d at 327. 

Plaintiff relies on Gaines for the proposition that the mere

existence of an anti-harassment policy alone is insufficient to

defeat a harassment claim, particularly on summary judgment. 

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(Pl.’s Br. 7.) Plaintiff contends that in this case “there

clearly exist genuine issues of material fact as to whether

Defendant implemented an effective anti-harassment policy.” 

(Id.) As an initial matter, Plaintiff argues that there was “no

‘unequivocal commitment from the top in this matter’” to

demonstrate that Lidestri’s policies against sexual harassment

were more than mere words, but were backed up by consistent

practice. (Id.) Plaintiff specifically relies on the fact that

the complained-of conduct here came from a member of management

and that other members of management were aware of Plaintiff’s

allegations and did not report the allegations. (Id. at 7-8.) 10

Plaintiff also argues that Lidestri never conducted any classes,

seminars, trainings, or other instructional opportunities for

non-managerial employees, like Plaintiff, regarding the company’s

policies. (Id. at 8.) Finally, Plaintiff points to the fact

that Lidestri’s policies were revised after Plaintiff was hired

but that he never received an updated version of the policy. 

(Id.)

 In his attempt to argue that there was no commitment from 10

the top to enforce Lidestri’s policies, Plaintiff notes that

Roger Valladares was purportedly terminated for his failure to

report allegations of sexual harassment based on Shaw’s conduct. 

Rather than establishing that Lidestri’s policies were mere

words, Plaintiff’s argument actually supports the notion that

Lidestri backed up its policies in practice, taking sexual

harassment allegations so seriously, that the company not only

terminated the alleged harasser, Shaw, but also a member of

management who failed to timely report Plaintiff’s allegations. 

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Despite Plaintiff’s arguments, the Court finds that there is

no evidence in this case demonstrating that Lidestri’s policies

were merely words. Rather, it is undisputed that Lidestri

maintains both a “Sexual Harassment” policy which expressly

prohibits sexual discrimination or harassment, and a broader

“Non-Harassment” policy, both of which are set forth not only in

the employee handbook, but are separately provided to new

employees at the time they are hired by Lidestri to emphasize

their importance. (Lidestri’s Statement ¶¶ 3-4, 8; Pl.’s

Statement ¶¶ 3-4, 8.) It is also undisputed that both of these

policies are specifically reviewed with employees as part of

their new employee orientation, and that employees are required

to sign off on receipt of both policies. (Lidestri’s Statement

¶¶ 5-6; Pl.’s Statement ¶¶ 5-6.) Plaintiff concedes that at the

time he was hired, he signed both of Lidestri’s policies, but

failed to read either of them. (Lidestri’s Statement ¶ 7; 11

Pl.’s Statement ¶ 7; Pl.’s Further Statement of Undisputed

Material Facts ¶ 1.)

The Sexual Harassment policy provides for a reporting

mechanism regarding complaints whereby “[e]mployees who believe

they have been the subject of sexual harassment should report

their charge immediately to any supervisor or Jane Oca in the

 Plaintiff notes that he never received a copy of either 11

policies for his own personal retention. (Pl.’s Further

Statement of Undisputed Material Facts ¶ 2.) 

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Human Resources Department” and Oca’s contact information is

readily accessible on the company website, and was so in 2010. 

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

Sexual Harassment policy further explains that Lidestri will

promptly and throughly investigate all complaints. (Lidestri’s

Statement ¶ 11; Pl.’s Statement ¶ 11.) 

In the face of this evidence the Court finds that this case

is distinguishable from Gaines, where several issues of disputed

facts were present, and that no reasonable jury could conclude

that Defendant did not have an adequate anti-harassment policy in

place. Lidestri made periodic publication of its policies

available to employees through the hiring and orientation

process; presented employees with a practical and effective

grievance process for reporting complaints to any supervisor or

member of the Human Resources Department in the company; by

providing employees a certain degree of training and review of

the policy during orientation; and by providing supplemental

training on the relevant policies to supervisors and management

employees. 

Furthermore, the Court must consider the efficacy of

Lidestri’s remedial program because it is highly pertinent to

Lidestri’s defense that its actions absolve it from liability

here. In this regard, the record evidence demonstrates that as

soon as Plaintiff’s complaint letter was brought to the attention

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of the company on December 13, 2010, Lidestri took swift and

thorough action to investigate Plaintiff’s allegations and put a

stop to Shaw’s conduct. Specifically, Lidestri received

Plaintiff’s complaint letter on December 13, 2010 at 4:45 p.m.,

through Jehens, its top Human Resource official at the Pennsuaken

facility. The following morning, Jehens began an internal

investigation of Plaintiff’s allegations against Shaw, and

Lidestri suspended Shaw immediately pending the outcome of the

investigation in order to prevent Shaw from engaging in any

further conduct. Jehens’ investigation consisted of interviews

of ten Lidestri employees over an eight (8) day period. Within

just one day of completing her investigation, Jehens reported her

findings to Oca, Lidestri’s Corporate Human Resources Manager,

who consulted Lidestri’s Vice-President, Donna Yanicky, and the

Director of the Warehouse, Lee Biscardi. That same day, December

22, 2010, these individuals collectively decided to terminate

Shaw’s employment based on Plaintiff’s allegations — just eleven

days from the receipt of Plaintiff’s letter, and a mere seven

business days. This undisputed evidence is sufficient to support

the grant of summary judgment to Lidestri on Plaintiff’s sexual

harassment claim. 

B. Retaliation Claims 

Plaintiff alleges that he suffered two forms of retaliation

in this case. Initially, he claims he was subjected to

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retaliation by Carter and DiMaio who were “overchecking” his

worksite after Shaw was terminated in December of 2010.12

Additionally he asserts that he was terminated in retaliation for

complaining about Shaw’s sexual harassment. With respect to

these claims, Lidestri argues that being subjected to

“overchecking” or “micro-management” by supervisors does not

constitute an adverse employment action for purposes of a prima

facie case of retaliation. (Def.’s Br. 17.) Lidestri also

contends that Plaintiff cannot demonstrate a prima facie case of

retaliatory termination because Plaintiff cannot establish any

causal connection between his internal harassment complaint and

his termination. (Id. at 18.) Lidestri further argues that even

if Plaintiff could demonstrate the required causal link,

Plaintiff has failed to demonstrate any evidence that Lidestri’s

proffered reason for his termination, disciplinary violations, is

merely a pretext. (Id.) 

As a threshold matter, the Court finds that Plaintiff’s

contention that he was subjected to retaliation by supervisors

who were “overchecking” his worksite fails to qualify as an

adverse employment action under the NJLAD. While the NJLAD does

not provide an exhaustive list of what constitutes an actionable

 Plaintiff makes clear in his opposition that he is 12

asserting a cause of action for retaliatory harassment for the

time period between his internal complaint, December 13, 2010,

and his termination, January 13, 2011; and a second cause of

action for his retaliatory discharge. (Pl.’s Opp’n 9.) 

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reprisal or adverse employment decision and there are no bright

line rules defining an adverse employment action, New Jersey

courts have looked to federal cases interpreting Title VII and

Civil Rights legislation in order “to determine what constitutes

an adverse employment decision in the context of an LAD

retaliation claim.” Mancini v. Twp. of Teaneck, 794 A.2d 185,

207 (N.J. Super. Ct. App. Div. 2002). Factors relevant to this

determination include whether the alleged retaliatory conduct

resulted in the employee's “loss of status, clouding of

responsibilities, diminution in authority, disadvantageous

transfers or assignments, and toleration of harassment by other

employees.” Id. (citations omitted).

The Third Circuit has found that retaliatory conduct in the

Title VII context constitutes an adverse employment action “only

if it alters the employee's compensation, terms, conditions, or

privileges of employment, or deprives him or her of employment

opportunities, or adversely affects his or her status as an

employee.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300

(3d Cir. 1997). However, not every minor employment action that

makes an employee “unhappy” constitutes retaliatory conduct. Id.

An adverse action for purposes of Title VII refers to a

“significant change in employment status, such as hiring, firing,

failing to promote, reassignment or a decision causing a

significant change in benefits.” Weston v. Pennsylvania, 251

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F.3d 420, 431 (3d Cir. 2001) (emphasis added).

With these guidelines in mind, the Court finds that

Plaintiff’s allegations that his supervisors subjected him to

“overchecking”, “micro-management”, and targeted him by

questioning everything he did and pointing out things he did

wrong, are woefully insufficient to constitute adverse employment

actions or reprisals against Plaintiff for his protected

activity. Plaintiff has failed to present any evidence

demonstrating that any of this alleged conduct resulted in a

significant change in his employment status. Accordingly,

Plaintiff cannot maintain a claim for retaliation based on being

subjected to “overchecking” and “micro-management”, even if it

was done in a manner that Plaintiff considered intimidating or

uncomfortable. See Buffa v. New Jersey State Dept. of Judiciary,

56 F. App’x 571, 576 (3d Cir. 2003) (concluding that being

“subjected to harassment, intense scrutiny and overly-critical

supervision as a result of having filed grievances” does not

“qualify as [an] adverse employment action[].”). 

As to Plaintiff’s claim that he was terminated for bringing

a sexual harassment complaint based on Shaw’s conduct, even if

the Court assumes for purposes of this motion that Plaintiff has

satisfied his burden to establish a prima facie case, the Court

finds that Lidestri is still entitled to summary judgment. 

Lidestri has articulated a legitimate, non-retaliatory reason for

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Plaintiff’s termination – that Plaintiff was terminated for

insubordination and cursing at another supervisor – Plaintiff’s

seventh disciplinary infraction since April of 2010. (See

Employee Disciplinary Reports for Jorrin, Ex. 14 to Lidestri’s

Statement 1-6.) 

The undisputed documentary evidence establishes that

Plaintiff was repeatedly disciplined at Lidestri for violating

company conduct rules, on two separate occasions for excessive

absenteeism and tardiness, for taking an unauthorized extended

lunch break in violation of company policy, for violating a

company parking policy despite notice of the same, for attending

a training session without being scheduled for it such that

management could not locate Plaintiff during his shift, for

failure to follow instructions, and for performing substandard

work. (Id.) These disciplinary infractions resulted in

Plaintiff twice being suspended from employment with Lidestri. 

Five of Plaintiff’s Employee Discipline Reports indicate

that the consequences of Plaintiff’s failure to improve would

result in “[d]iscipline up to and including termination.” (Id.

at 1-5.) Plaintiff’s September 20, 2010 Employee Discipline

Report, by contrast, notes that Plaintiff “needs to follow

instructions and adhere to company procedures” and that “[t]his

employee is more of a liability than an asset to the

organization.” (Id. at 6.) The September 20, 2010 report

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explicitly calls for “[i]mmediate termination” of employment if

Plaintiff did not improve. (Id.) Plaintiff also testified that

was aware his job was at risk based upon his September 20, 2010

suspension. (Lidestri’s Statement ¶ 67; Pl.’s Statement ¶ 67.) 

In light of these undisputed facts, the Court is satisfied

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

Lidestri did not terminate Plaintiff in retaliation for bringing

a sexual harassment complaint against Shaw, but rather, Plaintiff

was terminated for insubordination and cursing at a shift

supervisor, after having twice been previously suspended from

employment for disciplinary infractions and having been subjected

repeatedly to disciplinary action for failure to follow

instructions. His termination was consistent with his September

20, 2010 Employee Discipline Report which sought immediate

termination if Plaintiff did not improve his ability to follow

instructions. 

Accordingly, the burden shifts to Plaintiff to come forward

with evidence of a discriminatory motive and to demonstrate that

Lidestri’s proffered reason is merely a pretext. Young, 897 A.2d

at 1073; see also Goldie v. Jones, 2009 WL 2475342, at *4 (N.J.

Super. Ct. App. Div. Aug. 14, 2009) (citing Kolb v. Burns, 727

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

plaintiff ‘has the ultimate burden of proving that the employer's

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proffered reasons were a pretext for the discriminatory

action.’”). To survive a motion for summary judgment, Plaintiff

is not required to “provide direct evidence that [the] employer

acted for discriminatory reasons[.]” Kolb, 727 A.2d at 531. 

Plaintiff “need only point to sufficient evidence to support an

inference that the employer did not act for its proffered

non-discriminatory reasons.” Id. Plaintiff, “as the nonmoving

party, ‘must demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them ‘unworthy of

credence,’ and hence infer “that the employer did not act for

[the asserted] non-discriminatory reasons.”’” Id. (citing

Fuentes v. Perskie, 32 F.3d 759, 765 (3rd Cir. 1994)). To defeat

summary judgment, Plaintiff “must raise a genuine issue of

material fact regarding whether the employer's proffered

explanation is pretextual or whether, the ‘retaliatory

discrimination was more likely than not a determinative factor in

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

In meeting his burden to demonstrate pretext, Plaintiff may

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

pleadings, and must identify, by affidavits or otherwise,

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

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

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withstand a properly supported motion for summary judgment, the

nonmoving party must identify specific facts and affirmative

evidence that contradict those offered by the moving party. 

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

Plaintiff has failed to meet his burden here to demonstrate

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

underlying discriminatory motive. Plaintiff’s opposition to

Lidestri’s motion does not identify a single discernible fact or

piece of affirmative evidence to demonstrate pretext in this

case. Plaintiff simply points to his own deposition testimony

wherein he denies that he cursed at a shift supervisor or was

guilty of insubordination. These conclusory, self-serving

denials are insufficient to demonstrate that Lidestri’s

legitimate, non-retaliatory reason was a pretext. Thus there 13

is no evidence from which a reasonable factfinder could conclude

that Lidestri’s proffered reason is unworthy of credence and

 The notion that Plaintiff was terminated in retaliation 13

for his complaint of sexual harassment is not only inconsistent

with Lidestri’s swift, effective, and through handling of the

complaint resulting in Shaw’s immediate suspension and prompt

termination, but also with Plaintiff’s testimony that on the day

Shaw was terminated, Jehens met with Plaintiff to inform him Shaw

was being let go and requested that “in the future” Plaintiff

come to Jehens with whatever problems he had or if he felt

uncomfortable in the workplace. (Ex. 2 to Lidestri’s Statement,

Tr. of Pl.’s Dep. 107:17-22.) Plaintiff’s own acknowledgment

that Lidestri, through Jehens, reached out to Plaintiff regarding

future incidents that Plaintiff might encounter in the workplace,

also dispels any notion that Lidestri’s reason for terminating

Plaintiff was a pretext for retaliation based on the sexual

harassment complaint.

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infer that Lidestri did not act for its asserted, 

non-discriminatory reason. 

In these circumstances, Plaintiff has failed to meet his

burden to defeat summary judgment on the issue of pretext. 

Plaintiff has not come forward with adequate evidence raising a

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

reason is a pretext sufficient for a jury to infer that

retaliatory discrimination was more likely than not a

determinative factor in terminating Plaintiff’s employment. See

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

summary judgment on Plaintiff’s claim.

V. CONCLUSION

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

motion for summary judgment is granted. An Order consistent with

this Opinion will be entered.

Dated: March 28, 2013 s/ Noel L. Hillman 

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

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