Harry Parikh v. UPS ( 2012 )


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  • ALD-238                                               NOT PRECEDENTIAL
    
                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________
    
                                         No. 11-4482
                                         ___________
    
                                 HARRY PARIKH, Appellant
    
                                              v.
    
                  UPS; ED FEGAN; JULIE FIELDS; ANNETTE JOHNSON
                        ____________________________________
    
                       On Appeal from the United States District Court
                                  for the District of New Jersey
                                 (D.C. Civil No. 2-09-cv-01652)
                       District Judge: Honorable Dennis M. Cavanaugh
                         ____________________________________
    
       Submitted for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                      July 26, 2012
                   Before: SLOVITER, FISHER and WEIS, Circuit Judges
                             (Opinion filed: August 7, 2012)
                                        _________
    
                                          OPINION
                                          _________
    
    PER CURIAM.
    
          Harry Parikh, proceeding pro se and in forma pauperis, appeals from the District
    
    Court’s order granting Defendants’ motion for summary judgment and denying his
    
    motion for summary judgment. For the reasons that follow, we will summarily affirm.
                                                  I.
    
             1.    Factual Background
    
            The District Court set forth a thorough recitation of the facts, (Dkt. No. 87, pp. 1-
    
    4), and we will only highlight those most pertinent to this appeal. Parikh started working
    
    at the United Parcel Service (“UPS”) in 1999. (Dkt. No. 71, Attach. 5, Ex. A-1 at 36:24-
    
    25.) In October 2006, he was transferred to the telecommunications department. (Id. at
    
    53:24-54:1.) Parikh claimed that, in a meeting prior to his transfer, defendant Ed Fagan 1
    
    said that he was “getting old” and told him to “go back where you came from” and tore
    
    up a copy of Parikh’s degree certificate. (Id. at 97:5-25.) Parikh also claimed that, in
    
    October 2008, defendant Annette Johnson entered his cubicle and asked him why he was
    
    praying at this desk and whether he was Hindu or Muslim. (Id. at 85:6-18.)
    
            UPS has an “Honesty in Employment Policy” (the “Policy”) stating that
    
    dishonesty “will result in immediate dismissal and possible criminal prosecution.” (Dkt.
    
    No. 71, Attach. 18, Ex. M.) Parikh signed an acknowledgment of the Policy on October
    
    6, 1999. (Id., Attach. 5, Ex. A-1 at 189:10-191:15.)
    
            In 2008, Defendants began investigating whether employees were falsifying time
    
    cards. (Id., Attach. 29, Ex. A.) Defendants stated that Parikh entered work forty minutes
    
    later than he reported on both October 20 and 22, 2008. (Id.) They also claimed that he
    
    was warned, prior to October 22, 2008, that falsifying timecards could result in
    
    
    
    1
        He is misidentified in Parikh’s Complaint as “Ed Fegan.”
                                                   2
    termination. (Id.) Defendants conducted a further investigation that, according to them,
    
    confirmed Parikh’s misconduct. (Id., Attach. 9, Ex. D at 78:23-79:12.)
    
           Parikh was fired in November 2008. (Id., Attach. 5, Ex. A-1 at 53:9-10.)
    
    Defendants claimed that he was terminated for falsifying his time cards in violation of the
    
    Policy. Parikh claimed that his termination was related to discriminatory actions of the
    
    Defendants.
    
           2.     Procedural Background
    
           On December 4, 2008, Parikh filed charges with the Equal Employment
    
    Opportunity Commission (“EEOC”) and the New Jersey Division of Civil Rights
    
    (“DCR”). In April 2009, Parikh filed his Complaint against UPS and three former
    
    managers, claiming that he was unlawfully terminated on account of his age, national
    
    origin, and religion in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”)
    
    and the Age Discrimination in Employment Act (“ADEA”). Parikh also alleged common
    
    law claims for wrongful termination and intentional infliction of emotional distress.
    
           Defendants moved for summary judgment on the grounds that Parikh’s ADEA
    
    claim was time-barred and his remaining claims were meritless. Parikh also moved for
    
    summary judgment. By Opinion and Order entered October 31, 2011, the District Court
    
    granted Defendants’ motion, denied Parikh’s, and terminated the case.
    
    
    
    
                                                  3
                                                 II.
    
           Jurisdiction is proper under 28 U.S.C. § 1291. 2 We will summarily affirm the
    
    District Court’s judgment if the appeal presents no substantial question. See 3d Cir. LAR
    
    27.4 and I.O.P. 10.6.
    
           We exercise plenary review over a district court’s grant of summary judgment and
    
    apply the same standard as applied below. Watson v. Eastman Kodak Co., 
    235 F.3d 851
    ,
    
    854 (3d Cir. 2000). That is, “[t]he court shall grant summary judgment if the movant
    
    shows that there is no genuine dispute as to any material fact and the movant is entitled to
    
    judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party has the burden
    
    of demonstrating that there is no genuine issue as to any material fact, and summary
    
    judgment is to be entered if the evidence is such that a reasonable fact finder could find
    
    only for the moving party.” Watson, 235 F.3d at 854 (citing Anderson v. Liberty Lobby,
    
    Inc., 
    477 U.S. 242
    , 248 (1986)).
    
    
    
    
    2
      Parikh’s Notice of Appeal was filed on December 12, 2011, approximately six weeks
    later. After the Notice of Appeal was docketed in this Court, the Clerk notified Parikh
    that it appeared to be untimely because it was filed more than thirty days after the District
    Court’s order. See Fed. R. App. P. 4(a)(1)(A). Shortly thereafter, Parikh returned to the
    District Court and filed a motion seeking an extension of time to file an appeal. See Fed.
    R. App. P. 4(a)(5). The District Court granted that motion on April 4, 2012, thereby
    rendering timely Parikh’s Notice of Appeal.
                                                  4
           1.     Parikh’s ADEA Claim is Time-Barred
    
           The District Court dismissed Parikh’s claim under the ADEA as time-barred.
    
    (Dkt. No. 87, pp. 5-7.) A plaintiff bringing an employment discrimination claim under
    
    the ADEA must exhaust his remedies by filing an administrative charge with the EEOC.
    
    29 U.S.C. § 626(d)(1); Seredinski v. Clifton Precision Prods. Co., 
    776 F.2d 56
    , 63 (3d
    
    Cir. 1985). The charge must be filed within 180 days of the alleged unlawful
    
    employment practice. 29 U.S.C. § 626(d)(1)(A). However, “in the case of an alleged
    
    unlawful practice occurring in a State which has a law prohibiting discrimination in
    
    employment because of age and establishing or authorizing a State authority to grant or
    
    seek relief from such discriminatory practice,” the 180 day period is extended to 300
    
    days. 29 U.S.C. § 633; 29 U.S.C. § 626(d)(1)(B).
    
           “Generally, a judicial complaint under the ADEA will be dismissed for failure to
    
    exhaust administrative remedies if a supporting EEOC charge was not filed within 180 or
    
    300 days (depending on state law) of notification to the employee of the adverse
    
    employment action.” Ruehl v. Viacom, Inc., 
    500 F.3d 375
    , 382 (3d Cir. 2007).
    
    “[P]laintiffs residing in states having an agency authorized to grant relief for federally
    
    prohibited employment discrimination must resort to that state remedy before they will be
    
    allowed access to federal judicial relief.” Watson, 235 F.3d at 854 (citations omitted).
    
    These states are called “deferral” states. Id. In a deferral state like New Jersey, the
    
    charge must be filed within 300 days of the alleged unlawful employment practice.
    
    
                                                  5
    Miller v. Beneficial Mgmt. Corp., 
    977 F.2d 834
    , 842 (3d Cir. 1992) (citing Bihler v.
    
    Singer Co., 
    710 F.2d 96
    , 97 (3d Cir. 1983)).
    
           The EEOC filing deadlines function as statutes of limitations. See Del. State Coll.
    
    v. Ricks, 
    449 U.S. 250
    , 256-57 (1980) (“The limitations periods, while guaranteeing the
    
    protection of the civil rights laws to those who promptly assert their rights, also protect
    
    employers from the burden of defending claims arising from employment decisions that
    
    are long past.”) (citations omitted). The limitations period begins at the time of the
    
    alleged discrimination. Id. at 258; see also Watson, 235 F.3d at 854 (attempt to obtain
    
    relief under the ADEA may proceed only if administrative charge filed within 300 days
    
    of alleged unlawful employment action).
    
           Because Parikh filed charges of age discrimination with the EEOC and the DCR, a
    
    New Jersey agency, he was subject to the 300-day limitation period set forth by the
    
    ADEA. Miller, 977 F.2d at 842. The alleged age discrimination occurred in October
    
    2006. His charges were filed over two years later, on December 4, 2008. That falls well
    
    outside of the 300 days permitted by law. 3 Therefore, the District Court properly
    
    dismissed Parikh’s ADEA claim as time-barred. 4 Watson, 235 F.3d at 854.
    
    
    3
      We agree with the District Court’s conclusion that the “continuing violation doctrine
    does not save [Parikh’s] ADEA claim” because it was based on one comment made by
    Defendant Fagan. We need not repeat that analysis here. (Dkt. No. 87, pp. 6-7.)
    4
      Though the District Court cited Title VII and relied on case law pertaining thereto in its
    analysis, we may affirm the District Court’s decision for any reason supported by the
    record, Storey v. Burns Int’l Sec. Servs., 
    390 F.3d 760
    , 761 n.1 (3d Cir. 2004), and we
    reach the same result.
                                                   6
           2. Parikh’s Remaining Claims Under Title VII and the ADEA
    
           The District Court also determined that Parikh’s claims that he was discriminated
    
    against on the basis of his age, national origin, and religion were meritless. (Dkt. No. 87,
    
    pp. 7-10.) A plaintiff must establish a prima facie case of discrimination in order to
    
    sustain claims under Title VII and the ADEA. McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 802 (1973); Smith v. City of Allentown, 
    589 F.3d 684
    , 689 (3d Cir. 2009).
    
    Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to
    
    identify a legitimate non-discriminatory reason for the adverse employment action.
    
    McDonnell Douglas, 411 U.S. at 802. If the defendant does so, the burden shifts back to
    
    the plaintiff to establish that the defendant’s proffered rationale was a pretext for
    
    discrimination. Id. at 804.
    
           Defendants assumed, for purposes of summary judgment, that Parikh established a
    
    prima facie case of discrimination. Therefore, the District Court focused on whether
    
    Defendants met their burden of identifying a legitimate non-discriminatory reason for
    
    terminating Parikh, and whether Parikh established that Defendants’ proffered rationale
    
    was a pretext for age discrimination. (Dkt. No. 87, pp. 8-10.)
    
           The District Court determined that Defendants met their burden of identifying a
    
    legitimate non-discriminatory reason for firing Parikh, namely, that he falsified time
    
    cards in violation of the Policy. (Dkt. No. 87, pp. 8-9.) Parikh then faced the “difficult
    
    burden” of demonstrating “such weaknesses, implausibilities, inconsistencies,
    
    incoherencies, or contradictions in the employer’s proffered legitimate reasons for its
                                                  7
    action that a reasonable factfinder could rationally find them unworthy of credence.”
    
    Fuentes v. Perskie, 
    32 F.3d 759
    , 765 (3d Cir. 1994) (internal quotation marks and citation
    
    omitted). Parikh failed to present evidence that Defendants’ rationale was pretextual and
    
    that his termination was actually motivated by their “discriminatory animus.” Id. We
    
    agree with the District Court that Parikh did nothing more than question the
    
    reasonableness of Defendants’ actions, which does not meet the burden for proving
    
    pretext. The District Court properly granted summary judgment in favor of Defendants
    
    on Parikh’s claims under Title VII and the ADEA.
    
          3.     Wrongful Termination
    
          The District Court dismissed Parikh’s common law claim for wrongful termination
    
    because it was duplicative of his statutory claims. (Dkt. No. 81, p. 10.) Common law
    
    claims for wrongful termination are pre-empted when a statutory remedy exists. See
    
    Lawrence v. Nat’l Westminster Bank N.J., 
    98 F.3d 61
    , 73 (3d Cir. 1996); Santiago v.
    
    City of Vineland, 
    107 F. Supp. 2d 512
    , 567 (D.N.J. 2000) (collecting cases). Parikh’s
    
    wrongful termination claim was based on the same set of facts as his discrimination
    
    claims. We agree with the District Court that a common law wrongful termination claim
    
    was duplicative, as it would not protect any interest beyond Parikh’s claims under Title
    
    VII and the ADEA. The District Court properly dismissed this claim.
    
          4.     Claims Against Individual Defendants
    
          The District Court dismissed Parikh’s claims against his three former managers in
    
    their individual capacities. (Dkt. No. 87, pp. 10-11.) Neither Title VII nor the ADEA
                                                8
    provides for individual liability. See Hill v. Borough of Kutztown, 
    455 F.3d 225
    , 246
    
    n.29 (3d Cir. 2006) (“Hill did not bring an ADEA claim against Mayor Marino himself,
    
    nor could he have because the ADEA does not provide for individual liability.”);
    
    Sheridan v. E.I. DuPont de Nemours & Co., 
    100 F.3d 1061
    , 1078 (3d Cir. 1996) (“[W]e
    
    are persuaded that Congress did not intend to hold individual employees liable under
    
    Title VII.”). The District Court properly dismissed these claims.
    
           5.     Intentional Infliction of Emotional Distress
    
           Parikh claimed that Defendants were liable for intentional infliction of emotional
    
    distress. To establish a claim for intentional infliction of emotional distress, a plaintiff
    
    must establish: (1) that Defendants acted intentionally or recklessly, both in doing the act
    
    and in producing emotional distress; (2) that Defendants’ conduct was so outrageous in
    
    character and extreme in degree as to go beyond all bounds of decency; (3) that
    
    Defendants’ actions were the proximate cause of the emotional distress; and (4) that the
    
    emotional distress suffered was so severe that no reasonable person could be expected to
    
    endure it. Mardini v. Viking Freight, Inc., 
    92 F. Supp. 2d 378
    , 384 (D.N.J. 1999) (citing
    
    Buckley v. Trenton Sav. Fund Soc’y, 
    544 A.2d 857
     (N.J. 1988)). Further, “[t]he conduct
    
    must be so outrageous in character, and so extreme in degree, as to go beyond all possible
    
    bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
    
    community.” Id. (citing Taylor v. Metzger, 
    706 A.2d 685
     (N.J. 1998) (internal quotation
    
    marks and other citations omitted)).
    
    
                                                   9
           We agree with the District Court that the termination of an employee, without
    
    more, is not outrageous. See McNemar v. Disney Store, Inc., 
    91 F.3d 610
    , 623 (3d Cir.
    
    1996) (“termination of employment does not, without evidence of harassment, support a
    
    claim of intentional infliction of emotional distress”); Borecki v. E. Int’l Mgmt. Corp.,
    
    
    694 F. Supp. 47
    , 62 (D.N.J. 1988) (“[T]he termination of an employee … is the kind of
    
    event that happens every day … . Quite a bit more ... must accompany a firing if it is to
    
    be deemed outrageous.”) (internal quotation marks and citations omitted)). As the
    
    District Court recognized, the few statements allegedly made by Defendants to Parikh
    
    were not outrageous. (Dkt. No. 87, p. 11.) Further, Parikh admitted that he did not have
    
    any physical or mental symptoms of emotional distress. (Dkt. No. 71, Attach. 6, Ex. A-2
    
    at 249:6-10.) For these and the other reasons articulated by the District Court (Dkt. No.
    
    87, pp. 11-12), we will affirm the grant of summary judgment in favor of Defendants.
    
                                                III.
    
           Because no substantial question is presented by this appeal, we will summarily
    
    affirm the order of the District Court granting Defendants’ motion for summary judgment
    
    and denying Parikh’s motion for summary judgment, pursuant to Third Circuit LAR 27.4
    
    and I.O.P. 10.6.
    
    
    
    
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