Hajra v. Wawa, Inc.

SAFET HAJRA, Plaintiff, v. WAWA, INC., Defendant.

Civil No. 15-7513(RMB/AMD)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE

January 26, 2018

[Dkt. No. 14]

OPINION

APPEARANCES:

Swati M. Kothari, Esq.

Law Offices of Swati M. Kothari

212 Route 38, Suite 200

Moorestown, NJ 08057

Attorney for Plaintiff.

Edward Nicholas Yost, Esq.

Wawa, Inc.

260 Baltimore Pike

Wawa, PA 19036

-and-

Frank P. Spada, Jr., Esq.

Semanoff, Ormsby, Greenberg & Torchia, LLC

2617 Huntingdon Pike

Huntingdon Valley, PA 19006

Attorneys for Defendant.

BUMB, United States District Judge:

This matter comes before the Court upon the filing of a motion for summary judgment [Dkt. No. 14] by Defendant Wawa, Inc. (the "Defendant" or "Wawa"), seeking the dismissal of the above-captioned matter brought by Plaintiff Safet Hajra (the "Plaintiff" or "Hajra") in its entirety. Having considered the parties' submissions and for the reasons set forth below, the Court grants Defendant's motion.

I. Factual and Procedural Background¹

A. Plaintiff's Employment at Wawa

Plaintiff is a Muslim who immigrated to the United States from Kosovo. (Pl.'s Dep. 9:12-14). He was hired as a Customer Service Associate at Wawa's Pemberton, New Jersey store in or around September 2010 by its General Manager, Emmanuel Paul ("Paul"). (Id. at 16:2-20). In or around November 2010, Plaintiff transitioned from Customer Service Associate to Fuel Court Associate. (Id. at 24:22-25:5; 45:5-10; Deposition of Emmanuel Paul ("Paul Dep.") at 51:10-52:9). In each of these positions, Plaintiff was an at-will employee. (Yost Decl., Ex. C at 1 [Dkt. No. 14-5]).

Plaintiff was initially paid $9.00 per hour as a Customer Service Associate. (Yost Decl., Ex. D [Dkt. No. 14-6]). Around the time he was transferred to the fuel court, Plaintiff's pay was raised to $9.10 per hour. (Id.) Plaintiff's hourly pay was again raised to $9.25 per hour in March, 2011. (Id.) In March 2012 Plaintiff's pay was raised to $9.65 per hour. (Id.)

When Plaintiff was hired as a Customer Service Associate, he was provided with a uniform including a shirt, hat, and apron. (Pl.'s Dep. 21:11-24). When he was transferred to the fuel court, Wawa provided Plaintiff with a Fuel Court Associateuniform, which consisted of a shirt, pants, a jacket, and a hat. (Id. at 45:5-21). Wawa employed an automated system through which employees could log in and order new uniforms themselves. (Id. at 44:23-45:4). During his time as a Fuel Court Associate, Plaintiff attempted to use this system to request a new uniform, but because he was still listed as a Customer Service Associate in Wawa's computer system he was only able to order a new shirt. (Id. at 47:7-25; Paul Dep. at 51:18-52:4).²

As a Fuel Court Associate, Plaintiff's responsibilities included, among other things, providing service to customers at Wawa's gas station, pumping gas for customers, processing payments for gas, and performing other tasks both inside and outside of the store as assigned. (Pl.'s Dep. at 25:23-27:6; Paul Dep. at 52:10-18; Yost Decl., Ex. F, at 1-2 [Dkt. No. 14-2]). Plaintiff worked overnight on the fuel court, working shifts of varying lengths between 10:00 P.M. and 7:00 A.M. (Pl.'s Dep. at 43:2-13). On a typical shift, Plaintiff was the only Fuel Court Associate on duty and was alone on the fuel court. (Id. at 51:21-23).

The Shift Manager for the majority of Plaintiff's shifts was Paul Ashton ("Ashton"). (Id. at 48:18-50:1). Ashton, who asa Shift Manager was responsible for the operations of the store during his shift, worked inside the store while Plaintiff worked outside. (Id.) In addition to Ashton, Plaintiff worked at various times with, among others, Emmanuel Paul and Elaine Crawford ("Crawford").

B. The Allegedly Discriminatory Remarks

Crawford was hired in 2011 as an Assistant General Manager. (Deposition of Elaine Crawford ("Crawford Dep.") at 13:9-15). On at least two occasions, while at work, Crawford told Plaintiff to "speak English."³ (Pl.'s Dep. at 147-48; Crawford Dep. at 74:9-11). The day after the last of these comments, which Crawford made on or about April 29, 2012, Plaintiff complained to Paul. (Pl.'s Dep. at 147:12-14; Paul Dep. at 49:14-50:18).

In response to Plaintiff's complaint, Paul approached Crawford and told her that Plaintiff had taken offense to what she said, and that she should desist from making such comments, whatever her intent. (Paul Dep. at 50:5-10; Crawford Dep. at 59:24-60:3). Paul also issued Crawford a written warning, knownas a "FOSA" in Wawa corporate parlance. (Paul Dep. 50:11-18). The next day Crawford sought out Plaintiff and apologized. (Pl.'s Dep. 147:15-148:1; Crawford Dep. 60:4-15). Crawford made no further comments after being reprimanded by Paul (Pl.'s Dep. 148:5-9).

C. The "Drive Offs" and Plaintiff's Termination

In late April, 2012, around the time Plaintiff complained of Crawford's comments to Paul, Paul noticed that there had been several "drive-offs" registered on the fuel court that month. A "drive-off" occurs when a customer gets gas, but drives away without ever paying. (Id. at 55:5-10). The April, 2012 "drive-offs" came to Paul's attention when he reviewed the store's Transaction Journal.⁴ The Transaction Journal is a report generated by Wawa that captures, among other things, the date and time of every transaction at the store (including "drive-offs"), the register at which the transaction was processed, the type of transaction, the amount of the transaction, and the employee who was logged into the register at the time of the transaction. (See, e.g., Yost Decl., Ex. J [Dkt. No. 14-12]).

When Paul looked into these transactions, he noticed that several had occurred during Ashton's (the overnight shift manager) shifts, and that Ashton's employee PIN⁵ had been used to process several "drive-offs" that month. (Paul Dep. 13:21-14:5). According to Paul, this "raised a red flag." (Id.) On April 30, 2012, alerted to what he perceived as a possible irregularity, Paul contacted Patricia Wallace ("Wallace"), who worked in loss prevention at Wawa, and asked her to investigate. (Deposition of Patricia Wallace "Wallace Dep." at 15:21-23, 40:1-7; Yost Decl., Ex. M [Dkt. No. 14-15]; see also, Paul Dep. 11-13).

Wallace investigated by reviewing the Transaction Journal, video of the fuel court—including video of the kiosks where the registers were housed, and the timesheets for the date and time of each of the transactions. (Wallace Dep. at 32:16-19). Upon conducting her review, Wallace concluded that on at least eleven occasions, Plaintiff had performed fraudulent "drive-offs," that is, he registered a "drive-off" in Wawa's system when the customer had actually paid for gas in cash.⁶ Wallace reached thisconclusion based on (1) her opinion that none of the typical signs of a "drive-off"—customers getting out of their vehicles to remove the nozzle from their cars themselves and speeding off—were present; (2) the fact that Plaintiff was working at the time each of the supposed "drive-offs" occurred; and (3) the fact that Plaintiff was on video at the register at which each of these "drive-offs" was entered at the time it was entered. (Id. at 25:2-8, 32:8-19, 46:4-15, 65:8-20, 102:12).

At Plaintiff's deposition, counsel for Wawa walked Plaintiff through the process Wallace had undertaken, having Plaintiff confirm that he was on duty when these "drive-offs" occurred and that he was indeed shown on video in the register kiosks at or about the time the "drive-offs" were processed. (See Pl.'s Dep. 68-110). The video contained a time signature, which Plaintiff also acknowledged. (Pl.'s Dep. at 68-115). Still, Plaintiff denies that he performed any fraudulent "drive-offs." He further maintains that because, according to Plaintiff, a manager's PIN is required to process a "drive-off," he could not have executed the majority of the fraudulent "drive-offs" of which he was accused.⁷

On May 4, 2012, Wallace interviewed Plaintiff in Paul's office. (Yost Decl., Ex. M; Pl.'s Dep. at 113:1-3; Wallace Dep. at 42:4-8). Paul was present for parts of this interview, but was not there for its entirety. (Pl.'s Dep. at 113:14-16; Wallace Dep. at 42:14-22). Paul and Wallace played Plaintiff the videos from the fuel court at the time of the "drive-offs" and asked him a number of questions about what he was being shown. (Wallace Dep. at 45:3-6; Pl.'s Dep. at 115:4-8; Paul Dep. at 48:10-12). Plaintiff denied having stolen anything. Plaintiff also alleges that during the course of the interview Wallace called him a "criminal" and threatened to have him deported. (Pl.'s Dep. 114:21-115:1). Wallace denies having made either comment. At the close of the interview, Wallace informed Paul that she had concluded that Plaintiff fraudulently registered several "drive-offs." (Wallace Dep. at 89:18-90:12; Paul Dep. at 23:3-5). Based on this information, Paul immediately terminated Plaintiff's employment. (Pl.'s Dep. 122:13-18; Wallace Dep. at 45:3-6; Paul Dep. at 39:3-4).

Wallace also filed a report with the Pemberton Police Department accusing Plaintiff of theft and provided a detective with copies of the video surveillance and Transaction Journal. (Wallace Dep. at 72:10-20; Yost Decl., Ex. M, at 2). Plaintiff was arrested and charged with theft, ultimately pleading guilty to a lesser offense. (Pl.'s Dep. at 126:7-11, 128:22-129:18; Yost Decl., Ex. N [Dkt. No. 14-16]).

D. This Suit

In August, 2012, Plaintiff filed a charge of discrimination against Wawa with the Equal Employment Opportunity Commission ("EEOC"). On August 3, 2015, the EEOC issued a Notice of Right to Sue. (Compl. ¶ 10). On October 15, 2015, Plaintiff filed a four-count Complaint alleging (1) national origin and religious discrimination in violation of Title VII of 42 U.S.C. § 2000e, et seq. ("Title VII") ("Count One"); (2) retaliation in violation of Title VII ("Count Two"); (3) discrimination and hostile work environment harassment in Violation of 42 U.S.C. § 1981 ("Section 1981...