1. Hunt Burial Vault Company Llc Federal Tax Id Number
2. Hunt Burial Vault Company Llc Federal Tax Id Lookup

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY REGINALD L. CANNON, Plaintiff, HON. SIMANDLE Civil No. 09-4612 (JBS/AMD) v.

Wilbert Funeral Services Inc. Is the industry leader in burial vaults and related products, with our heritage dating back to 1880 when Leo Haase became the first manufacturer of concrete burial vaults in the United States.

OPINION BRADBURY BURIAL VAULT CO., INC., Defendant. APPEARANCES: Michael H. BERG & PEARSON, PC 59 North Broad Street Woodbury, NJ 08096 Attorney for Plaintiff Reginald L. Cannon Amar Anand Agrawal, Esq. Unterlack, Esq. Scott Howard Marcus, Esq.

MARCUS & ASSOCIATES 121 Johnson Road Turnersville, NJ 08012 Attorneys for Defendant Bradbury Burial Vault Co., Inc. SIMANDLE, District Judge: I. INTRODUCTION This matter is before the Court on Plaintiff Reginald L. Cannon's ('Plaintiff') motion for partial summary judgment.

Docket Item 18. Defendant Bradbury Burial Vault Co. ('Defendant' or 'Bradbury Burial') has filed a cross-motion for summary judgment in opposition to the Plaintiff's motion.1 Docket Item 21. The Plaintiff argues for partial summary judgment as to Count I of his complaint alleging racial harassment in violation of Title VII, 42 U.S.C. 2000e, et seq. The Plaintiff maintains that the Defendant subjected the Plaintiff to a racially hostile work environment and there are no genuine issues of material fact to dispute Plaintiff's prima facie case.

The Defendant argues that the Plaintiff has failed to show that the racial discrimination complained of was pervasive and severe and the Defendant further argues that there is no respondeat superior liability in this case. Therefore, the Defendant cross moves for summary judgment dismissing this count of the Plaintiff's complaint. For the reasons discussed herein, the Court finds that there are genuine issues of material fact which preclude summary judgment and both motions will be denied. BACKGROUND A. Facts and Procedural History The Plaintiff initially worked for the Defendant from 1 The Plaintiff argues that the court should dismiss Defendant's cross-motion because it was filed out of time. While the Defendant's cross-motion was untimely by 7 days pursuant to L.Civ.R.

7.1(d)(5), there is no evidence of prejudice to the Plaintiff and the Plaintiff has fully briefed opposition to the Defendant's cross-motion. Therefore, the court will consider the cross-motion in this opinion. 2 approximately 1995-1997. 2.) (Reply Affidavit of Reginald Cannon ¶ The Plaintiff then returned to work for the Defendant as a laborer in 2004 and continues to work for the Defendant through the present time. 14, Certification of Reginald L.

Cannon ('Cannon Cert.' ) at ¶¶ 46, 47, 57).2 The Defendant is in the business of preparing concrete burial vaults for funeral directors for delivery to cemeteries. 1, Deposition of Peter Giannone ('Giannone Dep.' ) at 11:8-11). Employs approximately 25 individuals. The Defendant (Giannone Dep. At 12:2- 13:21.) Mr.

Lawrence Kenney is the President and 51% owner of Defendant Bradbury Burial. 3, Deposition of Lawrence Kenney ('Lawrence Kenney Dep.' ) at 79:21-80:3.) Mr. William Kenney is the Vice President and 49% owner of Defendant Bradbury Burial. (Lawrence Kenney Dep. At 80:4-80:11).

Also supervises employees of the Defendant. William Kenney (Pl.' 2, Deposition of William T. Kenney ('William Kenney Dep.' ) at 8:229:23). Peter Giannone is the Plant Manager for the Defendant and is in charge of the drivers and works with William Kenney to 2 The Defendant argued in its brief that the Plaintiff's certification was unsigned and therefore could not be relied upon by the court.

However, after reviewing the certification, the Court finds that it is both signed by the Plaintiff and notarized. In addition, the Plaintiff's certification is limited to statements of fact within the Plaintiff's personal knowledge.

Therefore, the Plaintiff's certification is properly considered by the court in deciding these motions. 3 supervise the employees in the plant. And Lawrence Kenney Dep. 85:5-15.) (Giannone Dep. 10:24-11:7 Mr. Gary Mason is the shop steward and also serves as the union representative for the union workers.

(Lawrence Kenney Dep. At 86:1-4.) manager.

Mason is not a (Giannone Dep. 16:9-13.) The only managers and supervisors employed with the Defendant are William Kenney and Peter Giannone. At 30:25-31:5.) (William Kenney As Plant Manager, Giannone also hired employees, terminated employees and disciplined employees.

(Giannone Dep. 11:16-21.) Giannone was responsible for handling complaints of harassment.

(William Kenney Dep. 37:8-22.) Giannone was responsible for disciplining employees for using a racial term and investigating any incident when an employee used a racial term. (William Kenney Dep.

37:16-22; 48:6-17.) Giannone's immediate supervisor was William Kenney. (Giannone Dep. 11:25-12:3.) Plaintiff bases the instant action on numerous events where racial terms were used during his employment from 2004 to 2009. These events primarily involve William Hazel and Amin Vasquez who were coworkers of the Plaintiff and admittedly not managers or supervisors. On two occasions, these incidents escalated to physical assault.

On or about May, 2004, shortly after the Plaintiff began his employment with the Defendant, William Hazel called the 4 Plaintiff: 'black bastard,' 'jigaboo,' and 'you dumb black people.' (Cannon Cert. ¶ 2.) statements.

Hazel denies making any of these (Def.' H, William Kenney Dep. 9:25-11:12.) The Plaintiff complained to Giannone within a day or so of Hazel using these terms.

(Cannon Cert. ¶ 2.) Giannone denies speaking to the Plaintiff about this alleged incident. Giannone Dep.

53:8-54:3.) (Def.' C, Hazel was never reprimanded for using any words, racial or otherwise, while employed with the Defendant. 5, Deposition of William Hazel ('Hazel Dep.' ) 9:16-24.) In April 2006, the Plaintiff heard Amin Vasquez state while at work, 'I ain't worried bout nothing but these gringos and 'niggers' here.'

(Cannon Cert. ¶ 4-5.) The Plaintiff immediately went to Giannone to complain about Vasquez's racial epithet but Giannone allegedly simply laughed. (Cannon Cert.

¶ 6.) The next day, the Plaintiff was involved in a physical altercation with Vasquez. (Cannon Cert.

¶ 4.) Vasquez stated to the Plaintiff 'f.ck you 'nigger.' ' (Cannon Cert. ¶ 8.) The Plaintiff then asked Vasquez what he said and in response, Vasquez stated that 'you are a 'nigger.' ' (Cannon Cert. ¶ 9.) The Plaintiff again asked Vasquez what he was calling him and Vasquez responded by approaching the Plaintiff, pointing his finger repeatedly in the Plaintiff's face and stating 'f.ck you 5 'nigger.'

' (Cannon Cert. ¶ 10.) (Cannon Cert. ¶ 10.) physical altercation. The Plaintiff felt threatened.

Then the Plaintiff and Vasquez engaged in a (Cannon Cert. ¶ 11.) Coworkers Matthew Gramkowski, Ayasir Sanabria and Erik Justice broke up the fight. 6, Deposition of Matthew Gramkowski ('Gramkowski Dep.' ) 129:16-130:2.) After this fight, Giannone asked Vasquez and the Plaintiff what happened, and the Plaintiff advised that Vasquez called the Plaintiff a 'nigger' four times. (Cannon Cert.

Sanabria also told Giannone that Vasquez called the Plaintiff a 'nigger.' 7, Certification of Ayasir Sanabria ('Sanabria Cert.' ) at ¶ 4.) Vasquez was not disciplined for calling the Plaintiff a 'nigger.' (Sanabria Cert. At ¶ 6.) After this incident, Mr. Giannone stated to both the Plaintiff and Mr. Vasquez that 'I could fire both of you or you can both go back to work.'

(Cannon Cert. ¶ 14.) Giannone issued a warning to the Plaintiff for calling Mr. Vasquez a 'spic.' J.) While Giannone denied speaking to the Plaintiff about this incident in his deposition, Mr. Giannone issued a write up of the situation on April 21, 2006, stating: 'Reggie admitted to me that he called Amin a spick cause Amin called him a Nigger first. When Amin was asked, Amin denied the name calling and didn't pay no attention to Reggie's Remark.' (Giannone Dep.

53:21-54:3; Def.' J.) 6 Several days later, during work hours, the Plaintiff asked Vasquez not to use his trowel. (Cannon Cert.

¶ 17.) Vasquez threw the trowel on the ground and said, 'I don't need to use no 'nigger' trowel.' (Cannon Cert.

¶ 18.) The Plaintiff complained about the incident to Giannone and Giannone again did not discipline Vasquez. (Cannon Cert. ¶ 18.) In January 2007, Hazel, William Kenney, Sanabria and Plaintiff were in the office. When the Plaintiff left the office, Hazel said to Kenney, 'look, the little 'coon' thinks we're talking about him.' (Sanabria Cert.

At ¶ 8.) Hazel then spoke about the 'spics' at the cemetery.' (Sanabria Cert. ¶.) Kenney did not correct Hazel and only laughed. 8.) (Sanabria Cert. ¶ Sanabria then told the Plaintiff Hazel had called him a 'coon' in front of Kenney and Kenney laughed. And Sanabria Cert.

¶ 8.) (Cannon Cert. ¶ 19 Hazel denies using or knowing the word 'coon.' 8:21-9:12.) The Plaintiff complained to Gary Mason, the shop steward, and Giannone after learning about Mr. Hazel's 'coon' comment. (Cannon Cert. ¶ 21; Giannone Dep.

54:18-55:23.) The Plaintiff was upset and told Giannone the he never believes the Plaintiff because he did not do anything about Vasquez. (Giannone Dep. 55:2-23.) Giannone spoke to Hazel and Hazel denied using the coon word. Kenney told Giannone he did not remember whether Hazel used the coon word or not. (Giannone Dep.

55:18-19.) 7 However, Kenney told Gary Mason he did believe he heard Hazel say the term 'coon.' (Certification of Gary Mason at ¶ 4.) Hazel was never reprimanded for using any words, racial or otherwise, while employed with the Defendant. 9:16-24.) In February 2007, Vasquez again called the Plaintiff a 'nigger.' (Cannon Cert. ¶ 22.) Within a day, the Plaintiff complained about the incident to Giannone.

And Giannone Dep. 20:9-21:10.) (Cannon Cert. ¶ 22 Vasquez was not disciplined. (Cannon Cert. ¶ 23.) The Plaintiff also complained to Giannone that Vasquez threatened him.

(Giannone Cert. 61:3-5.) The Plaintiff told Giannone if Vasquez attacked him, he would hit Vazquez. (Giannone Cert. 61:8-11; 62:14-22.) Giannone asked Vasquez whether he threatened the Plaintiff and Vasquez responded no. (Giannone Cert. 61:3-17.) Giannone did not notify Lawrence Kenny or William Kenney of this incident and did not discipline Vasquez. (Giannone Cert.

62:7-12.) However, Giannone issued a written warning to the Plaintiff for threatening a coworker. (Giannone Cert. 61:3-62:25.) The Plaintiff grieved the written warning to the union and it was subsequently withdrawn. (Declaration of Lawrence Kenney ¶ 26.) Following these incidents, a notice was given to all of the Defendant's employees with their pay checks on March 1, 2007.

This notice stated that the 'Company will not and does not 8 tolerate harassment of employees in the work place or any work related situation!!' 10.) The notice advises that harassment will lead to an immediate dismissal from work.

10.) In the summer of 2007, the Plaintiff and Vazquez were involved in another altercation. 14 ¶ 25.) During work hours, Vazquez walked by the Plaintiff and stated, 'you think you are Tyson.' The Plaintiff responded, 'I knocked you (Cannon Ex. 14 ¶ 26.) Vazquez then stated, 'f.ck you 'nigger' and stood in a fighting stance with a spike hammer in his hand.

14 ¶ 27.) The Plaintiff was fearful that Vasquez would strike him with the hammer and cause serious bodily harm. 14 ¶ 29.) The Plaintiff took off his shirt, wrapped it around his hand and stood in a protective stance. 14 ¶ 30.) William Kenney saw this exchange and advised the Plaintiff and Vasquez to stop it.

31.) (Cannon Ex. 14 ¶ Vasquez then threatened to take the matter outside. 14 ¶ 32.) Later that day, Vasquez and the Plaintiff walked outside and Vasquez began threatening the Plaintiff with a sharpened screwdriver. 14 ¶ 33.) break it up and go back work. William Kenney told them to (Cannon Ex. 14 ¶ 34.) At the end of the day, the Plaintiff went to his car in the parking lot.

14 ¶ 35.) 9 Vasquez and the Plaintiff again got into an argument and William Kenney demanded they not fight on the company's property. 134:15-17.) (Cannon Ex.

14 ¶ 35; Gramkowski William Kenney asked Vasquez and the Plaintiff, 'why are you two fighting?' And the Plaintiff responded 'because you keep letting Amin call me a 'nigger.' ' (Cannon Ex. 14 ¶ 36.) Vasquez then responded in the presence of William Kenney, 'because you are a 'nigger.' ' (Cannon Ex.

14 ¶ 37.) William Kenney then walked away while Mr. Vasquez and the Plaintiff engaged in a physical altercation in the parking lot. 14 ¶ 38.) (Cannon Giannone was also present and told the Plaintiff and Vasquez to take their fight around the back of the building and that once they were finished fighting, he did not want to hear anymore about the situation. 14 ¶ 39.) Vasquez and the Plaintiff then proceeded to fight around the back of the property. 14 ¶ 40.) as a result of this incident. Vasquez was never reprimanded (Cannon Ex. 14 ¶ 41.) The Defendant denies that William Kenney or Giannone participated or witnessed this altercation.

The Defendant cites to the deposition of Matthew Gramkowski, who testified that the altercation took place but he was unsure whether William Kenney or Giannone were present at the fight. (Gramkowski Dep.

134:10- fight. Gramkowski also testified that he did not witness the (Gramkowski Dep. 133:25-134:3.) Mr. Gramkowski explained that he was not present at the fight 'because they Plaintiff and 10 Vasquez argued for a little bit then they took it outside and we were told just to let it go. I think Kenney told us to leave it alone, Bill Kenney and then they just told us to let them go at it to get it out of their system.' (Gramkowski Dep.

133:9- 21.) In February 2009, several employees were listening to the radio while at work. 14 ¶ 42.) A coworker, Joe LeDonne, called the R&B radio station that was playing at the time 'jungle music' in the presence of William Kenney. 14 ¶ 42.) (Cannon On one occasion, William Kenney recalled Mr. LeDonne referring to hip hop music as 'jungle music.' 85:4-86:11.) (William The Plaintiff states that William Kenney did nothing except give the middle finger to coworkers Gramkowski and Sanabria when the R&B station was turned back on.

14 ¶ 43.) William Kenney testified during his deposition that he told LeDonne that using the term 'jungle music' was inflammatory and inappropriate. 87:1-7.) (William Kenney Dep. The Plaintiff, coworkers Sanabria, Gramkowski, and Erik Justice complained to William Kenney about LeDonne referring to rap music as 'jungle music.' (Gramkowski Dep. 143:21-146:15.) LeDonne was never disciplined for using the term 'jungle music' aside from Kenney's verbal reprimand. 19.) (William Kenney Dep. 16- The Defendant disputes whether the Plaintiff was present for this incident, whether 'jungle music' referred to hip hop and 11 whether any coworkers complained to William Kenney about the phrase 'jungle music.'

(William Kenney Dep. 85:4-87:19.) In addition to the above incidents, the Plaintiff also heard Giannone tell an employee named Larry that 'you are acting like a 'nigger,' but the Plaintiff could not recall the date this statement was made. 14 ¶ 44.) William Kenney also told Sanabria that he 'considers black people niggers,' and further stated, 'that's what me and my friends refer to them as.' (Sanabria Cert. ¶ 7.) It is disputed whether the Defendant maintained a policy to address harassment in the workplace. Giannone testified during his deposition that 'the company don't have no policy on how to handle discrimination, calling names, whatever.'

73:15-17.) (Giannone Dep. Giannone further testified that he was unaware of any individual who spoke to the employees of the Defendant to advise them as to what an employee should do if they were subjected to racial harassment at Bradbury. (Giannone Dep.

48:25-49:3.) Giannone also stated he did not know if an employee knew what to do if subjected to racial harassment at work. 48:9-14.) (Giannone Dep. In addition, Lawrence Kenney testified that the Defendant did not have its own policy relative to the prevention of racial harassment at Bradbury. (Lawrence Kenney Dep. 106:18- 108:5.) However, Lawrence Kenney also testified that if an employee 12 had a problem with racial harassment, he should file a grievance with the union in accordance with the union contract. 91:20-22.) (Lawrence Lawrence Kenney reviewed the union contract at his deposition and stated that if an employee has reported an incident of racial discrimination to a manager, the employee should be given the option of filing a grievance with the union. If the employee has no interest in filing a grievance, then the manager has the option of talking about the problem with the employee to see if they can resolve it.

(Lawrence Kenney Dep. 103:13-25.) However, it is 'always available to the employee to talk to the shop steward.' (Lawrence Kenney Dep. 104:1-2.) The collective bargaining agreement3 between Bradbury and the union states in pertinent part: There shall be no discrimination by the Employer against his employees because of Union activities; nor shall there be any discrimination against any employee because of race, color, creed, sex, age or nationality, in the placement and retention of employment, or in the hours, wages or working conditions of the employees. A and B, Collective Bargaining Agreement between Bradbury Burial Vault Company, Inc. And Teamsters Local Union 3 The Defendant attaches two collective bargaining agreements. The first agreement was effective from June 1, 2007 up to and including May 31, 2007.

The second agreement is effective June 1, 2007 and remains effective up to and including May 31, 2012. Both agreements contain identical nondiscrimination language. 13 676, Article 15.) It is undisputed that Giannone never had any training with the Defendant relative to racial harassment. 74:20-22.) (Giannone Dep. It is also undisputed that Giannone was never provided with any written materials relative to racial harassment while employed with the Defendant. (Giannone Dep.

74:23-75:1.) In terms of handling allegations of racial harassment, Giannone testified that unless he specifically heard the racial epithet, he would not believe it occurred. Specifically, when discussing the Plaintiff's February 2007 incident with Vasquez, Giannone testified: Q: Now, Mr. Vasquez, was he written up for calling Mr.

Cannon a nigger on that February 2007 incident? A: No, he was not. A: Because Amin told me he did not call him the 'n' word where Reggie admitted to me that he did call Amin a spick. And I said well, thanks for being honest and that's when I wrote up Reggie on that one.

Q: Did it have any -A: And that's the only reason why I didn't turn it into the union. Q: The fact that Mr. Justice and Mr.

Sanabrea sic confirmed that he heard Mr. Vasquez call Mr. Cannon a nigger did that have any weight in your decision?

A: No, no weight whatsoever. Q: Did you believe Mr.

Sanabrea sic, and Mr. Justice when they said that they heard Mr.

Vasquez call him a nigger? A: I only believe what I hear so no, I do not believe them. Q: So unless you specifically heard it you would not believe it? A: That's correct. Q: Is that accurate? A: That's accurate yes.

14 (Giannone Dep. 24:18-25:18.) Giannone placed a notice in employees pay checks regarding the Defendant's no tolerance harassment policy. These notices were placed in April 2006 and March 2007. (Giannone Dep. 47:11-22.) In regard to the March 2007 notice, Giannone testified that he disseminated the notice to 'try to make the workplace a little more safety sic because the employees were also saying that, you know, the company is unsafe to work for.' (Giannone Dep.

32:9-12.) Giannone testified these were the only two times that a harassment policy was disseminated amongst employees. (Giannone Dep. 47:20-22.) The Plaintiff thought of quitting his job on many occasions and it became increasingly difficult for the Plaintiff to work in a work environment where these harassing incidents continued to occur. (Cannon Cert. ¶ 45.) The Plaintiff suffered many sleepless nights as a result of the racial harassment and the Plaintiff feared for his own personal safety.

51.) (Cannon Cert. ¶ When Vasquez quit working with Bradbury in approximately January 2008, the Plaintiff began to feel safe at his job. (Cannon Cert. ¶ 52.) The Plaintiff filed a complaint with the EEOC. The EEOC then issued the Plaintiff a right to sue letter on June 12, 2009.

11.) The Plaintiff brought the instant action on September 9, 2009. Docket Item 1. Count One of Plaintiff's complaint alleges racial harassment in violation of Title VII and 15 specifically claims that the Defendant maintained a hostile work environment.

Count Two of Plaintiff's complaint alleges unlawful retaliation in violation of Title VII. The Instant Motion The Plaintiff filed the instant motion for partial summary judgment as to Count One of his complaint. Docket Item 18.

The Plaintiff argues there is no genuine issue of material fact as to whether the Defendant subjected the Plaintiff to a hostile work environment in violation of Title VII. The Plaintiff maintains that he suffered discrimination because he is a member of a protected class; the discrimination was severe and pervasive; the discrimination detrimentally affected him; the discrimination would have detrimentally affected a reasonable person in the Plaintiff's protected class; and the Defendant is liable for the discriminatory acts of Mr. Vasquez and Mr. Hazel pursuant to respondeat superior because the Defendant failed to provide a reasonable avenue for complaints of racial harassment or, alternatively, the Defendant knew or should have known of the harassment and failed to take prompt appropriate remedial action. Therefore, the Plaintiff argues that summary judgment as to Count One is appropriate. The Defendant filed a cross-motion for summary judgment in opposition. The Defendant maintains that the 'Plaintiff has not shown any discriminatory acts, let alone 'pervasive and regular' 16 acts.'

At 7.) In addition, the Defendant argues that it cannot be held vicariously liable for the conduct of Vasquez and Hazel because their alleged actions were outside the scope of their employment and the Defendant had in place a well-publicized anti-harassment policy with grievance procedures pursuant to the collective bargaining agreement to properly respond to the Plaintiff's complaint of harassment. Therefore, the Defendant argues that summary judgment should be granted in its favor and the Plaintiff's complaint should be dismissed. DISCUSSION A. Standard of Review Summary judgment is appropriate '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.' A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Fact is 'material' only if it might affect the outcome of the suit under the applicable rule of law. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Summary judgment will not be denied based on mere allegations or denials in the pleadings; instead, some evidence 17 A must be produced to support a material fact.

56(c)(1)(A); United States v. Premises Known as 717 S. Woodward Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. The nonmoving party must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec.

Zenith Radio Corp., 475 U.S. Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party s case necessarily renders all other facts immaterial. Celotex, 477 U.S.

However, the Court will view any evidence in favor of the nonmoving party and extend any reasonable favorable inferences to be drawn from that evidence to that party. 541, 552 (1999).

Cromartie, See also Scott v. Harris, 550 U.S.

372, 378 (2007) (The district court must view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion. In Title VII cases, 'courts must view summary judgment with special caution, because impermissible discriminatory intent and proof of disparate treatment can be difficult to establish.' Henderson, 142 F. 2d 625, 631 (D.N.J. 18 The summary judgment standard does not change when the parties have filed cross-motions for summary judgment. See Appelmans v. City of Phila., 826 F.2d 214, 216 (3d Cir.

Cross-motions for summary judgment: are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist. Transportes Ferreos de Venezuela II CA v.

NKK Corp., 239 F.3d 555, 560 (3d Cir. 2001) (citing Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. If review of cross-motions for summary judgment reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts. See Iberia Foods Corp. Romeo Jr., 150 F.3d 298, 302 (3d Cir.

1998) (citing Ciarlante v. Brown & Williamson Tobacco Corp., 143 F.3d 139, 145-46 (3d Cir.

Hostile Work Environment Claim Under 42 U.S.C. § 2000e-2(a)(1), it is an unlawful employment practice for an employer. To discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual s race. The Supreme Court has explained that this language is not limited to economic or tangible discrimination. The phrase terms, conditions, or 19 privileges of employment evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment.

Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (some internal quotations and citations omitted). In order to establish a claim under Title VII for employment discrimination based on a hostile work environment, a plaintiff must establish (1) that he or she suffered intentional discrimination because of race; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same race in that position; and (5) the existence of respondeat superior liability. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. The pervasiveness and objective reasonableness requirements in this standard are necessary to distinguish simple teasing, offhand comments, and isolated incidents (unless extremely serious), which are insufficient to establish a hostile work environment claim, from discriminatory changes in the terms and conditions of employment, which are actionable under Title VII.

City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotations and citations omitted). In other words, these standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a general civility code.

(internal quotations and citations omitted). 20 Recognizing that there can be no mathematically precise test to gauge the hostility of a workplace, the Supreme Court has instructed courts to consider the totality of the circumstances in each case, which include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee s work performance. Harris, 510 U.S. In this case, there are genuine issues of material fact which preclude the granting of summary judgment to either party, specifically with regard to the second and fifth elements of Plaintiff's prima facie case. It is clear from the record that the Plaintiff suffered intentional discrimination because of his race and meets the first element. The Plaintiff's certification, deposition testimony of Mr. Gramkowski and certification of Mr.

Sanabria support a finding that the Plaintiff was called 'nigger' on a number of occasions by his coworkers and this comment was intentionally discriminatory because of Plaintiff's race. 'Unlike certain age-related comments which we have found too vague to constitute evidence of discrimination, the term 'nigger' is a universally recognized opprobrium, stigmatizing AfricanAmericans because of their race.' Power Ass'n, 989 F.2d 858, 861 (5th Cir. 21 However, there is a genuine issue of material fact with regard to whether the discriminatory acts were severe or pervasive.

These acts span a five year period from 2004 to 2009. The Plaintiff, despite these discriminatory acts by his coworkers, remains an employee of the Defendant.

The Plaintiff also failed to grieve a number of these incidents to the union. From these facts, a rational jury could conclude that the discrimination was not serious or pervasive. On the other hand, the Plaintiff was involved in two physical altercations arising out of the discriminatory comments of Mr. Vasquez and the Plaintiff's membership in a protected class. One of these altercations, according to the Plaintiff's certification, was witnessed by managers Peter Giannone and William Kenney, who did not break up the fight but only encouraged Vasquez and the Plaintiff to take the fight around the back of the property.

'Racially motivated physical threats are the most egregious form of workplace harassment. When conduct in the workplace is physically threatening to an individual because of his membership in a protected class, that conduct will almost always create a hostile work environment.' New York City Housing Authority, 154 F. 2d 820, 825 (S.D.N.Y. Giving all favorable inferences to the Plaintiff, a rational jury could find that these physical altercations were severe and created a hostile work environment. 22 The Defendant does not challenge that the Plaintiff was detrimentally affected by this discrimination or that a reasonable person in Plaintiff's protected class would have been detrimentally affected by these discriminatory acts. The court finds the Plaintiff's certification provides evidence that he was indeed detrimentally affected by these discriminatory acts from 2004 to 2009.

In addition, the evidence could support a finding that a reasonable person in Plaintiff's protected class would be detrimentally affected by the discriminatory conduct of Plaintiff's coworkers during this time period. Finally, the parties heavily dispute whether the Defendant is liable pursuant to respondeat superior. It is undisputed by the parties that the harassors at issue in this case are Mr. Vasquez and Mr. Hazel, who are coworkers of the Plaintiff, not supervisors.

Therefore, the Defendant can only be liable under a negligence theory. 'Employer liability for coworker harassment exists only if the employer failed to provide a reasonable avenue for complaint or, alternatively, if the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action.' Procter & Gamble Paper Products Corp., 568 F.3d 100, 104 (3d Cir. An employer can avoid respondeat superior liability by asserting an affirmative defense showing '(i) that it exercised reasonable care to prevent and correct 23 promptly any harassing behavior; and (ii) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.' Swingle, 142 F. 2d at 634 (internal citations omitted). Additionally, to protect an employer from unwarranted liability for the discriminatory acts of its nonsupervisor employees, the evidence must demonstrate that 'the defendant knew or should have known of the harassment and failed to take prompt remedial action.'

City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990); see also Kunin v.

Sears Roebuck & Co., 175 F.3d 289, 294 (3d Cir. In this case, the employer knew of the harassment complained of by the Plaintiff on at least four occasions. Peter Giannone knew of the Plaintiff's April 2006 incident with Vasquez as evidenced by his disciplinary write up of the Plaintiff.

Giannone and William Kenney knew of the 'coon' incident in January 2007 as admitted in their deposition testimony. Giannone also was made aware of the February 2007 incident with Vasquez as evidenced by his second disciplinary write up of the Plaintiff and subsequent union grievance.

Hunt Burial Vault Company Llc Federal Tax Id Number

Finally, William Kenney knew about the 'jungle' music incident in 2009 as he discusses the incident in his deposition. It is disputed whether William Kenney and Giannone knew of the 2008 physical assault incident. The Plaintiff maintains in his certification that both managers 24 were present and did encourage the Plaintiff and Vasquez to take their fight to the back of the property rather than break up the altercation. Giannone and William Kenney deny being present for At minimum, there exists a genuine issue of material fact with regard to the employer's knowledge of the 2008 incident.

There is a genuine dispute as to the Defendant's response to the Plaintiff's complaints of harassment and whether this response was 'prompt and appropriate remedial action.' 568 F.3d at 104. Huston, There is no evidence in the record that Vasquez was ever formally disciplined for his persistent racially discriminatory treatment of the Plaintiff. The record indicates that Giannone took Vasquez's denial of discriminatory conduct at face value despite the Plaintiff's complaints and witness statements corroborating the Plaintiff's account. Nor does the record indicate that either Giannone or William Kenney advised Plaintiff of his right to grieve the discriminatory conduct of Vasquez to the union after any of the alleged incidents.

Aside from talking to the alleged harassors who uniformly denied any harassing treatment, the only other remedial action taken by the Defendant was to send two notices of a no-tolerance harassment policy to employees with their paychecks. The first was sent in The second was sent in March 2007. A jury could find that these notices were ineffective as the Plaintiff 25 continued to suffer harassment after the notices were issued. Further, Giannone admits to receiving no training on how to deal with claims of harassment and there is no evidence in the record that the employees received any training on harassment procedures and harassing conduct.

Hunt Burial Vault Company Llc Federal Tax Id Lookup

A rational jury could conclude that this response was not appropriate remedial action given the circumstances of Plaintiff's complaints. There is also a genuine dispute with regard to whether the Defendant provided a reasonable avenue of complaint. The Defendant relies heavily on the non-discrimination policy in the collective bargaining agreement to argue that there is no respondeat superior liability. The Defendant maintains that the existence of this policy allowed employees to grieve complaints of harassment to the union and this was the procedure for an employee to seek redress. However, Giannone testified that he was unaware of any company policy dealing with harassment and the record does not indicate that employees were ever informed of this policy nor was the Plaintiff encouraged to file a grievance with the union after his numerous complaints of harassment to Giannone. Further, the notices sent out by the Defendant in 2006 and 2007 did not direct employees to grieve harassment complaints to the Union. Therefore, there is a genuine issue of material fact as to whether the union policy at issue is sufficient to provide the 26 Defendant with an affirmative defense to respondeat superior liability.

A rational fact finder could conclude that the union policy was not meant to address harassing behavior between coworkers and that the Defendant did not have any policy in place to address workplace harassment and did not properly train employees on how to address workplace harassment. However, the existence of the non-discrimination policy in the union agreement does create a genuine dispute which makes summary judgment inappropriate. Finally, the Defendant's argument that it is not liable for the conduct of Vasquez and Hazel because this harassing conduct was outside the scope of their employment is questionable. The Supreme Court has clearly held that although a harassor's conduct is 'outside the scope of employment, an employer can be liable under Title VII, nonetheless, where its own negligence is a cause of the harassment.' 742, 759 (1998).

Burlington Inus. Ellerth, 524 U.S. 'An employer is negligent with respect to harassment if it knew or should have known about the conduct and failed to stop it.' As discussed above, there is a genuine dispute of material fact with regard to whether the Defendant was negligent and whether the Defendant failed to act promptly to prevent the harassment at issue.

Should be denied. CONCLUSION 27 Therefore, summary judgment Plaintiff's motion for summary judgment and the Defendant's cross-motion for summary judgment are denied.

Genuine issues of material fact exist with regard to whether the discrimination suffered by the Plaintiff was severe or pervasive and whether the union policy precludes a finding a respondeat superior liability. Therefore, summary judgment will be denied. The accompanying Order will be entered. The case will be set for trial.

December 14, 2011 Date s/ Jerome B. Simandle JEROME B. SIMANDLE United States District Judge 28.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN ENCAP, LLC, Plaintiff, v. 11-C-685 THE SCOTTS COMPANY, LLC, et al., Defendants. DECISION AND ORDER Plaintiff Encap, LLC (Encap) sued Defendants The Scotts Company, LLC, The ScottsMiracle Grow Company, LLC, and OMS Investments, Inc., (collectively, Scotts ) for infringement of four of Encap s patents and misappropriation of its trade secrets.

Before the court is Scott s motion for summary judgment on Encap s claim for misappropriation of trade secrets. For the reasons set forth below, Scott s motion will be granted. BACKGROUND Encap claims to have invented a number of novel platform technologies that have revolutionized the lawn and garden industry.

These inventions are described in a series of patents that Encap has obtained over the course of the last fifteen years, four of which Scotts is alleged to have infringed. One of the patents at issue, for example, describes combining in capsule form grass seed with a soil conditioner, inorganic fertilizer, growth enhancer, a binder and/or anti-fungal agent so that the respective materials cooperate with each other to promote germination and plant growth. (Abstract to 259 Patent, Am. 1 at 1, ECF No. 59-1.) Another describes a water absorbent material or indicator that, when spread on the surface of a newly seeded area, signals when it is time to water the area by increasing or decreasing in size. (Abstract to 878 Patent, Am. 2 at1, ECF No.

59-2.) A third describes the use of an agglomerated/granulated mulch as a seed carrier so that the mulch does not separate from the seed when it is planted. (Abstract of 513 Patent, Am. 3 at 1, ECF No. 59-3.) Finally, Encap s 183 Patent describes a way of determining the moisture or chemical content, or acidity of the soil by changes in color intensity or fragrance of a mulch.

4 at 8, ECF No. 59-4.) The products embodying these and other Encap patents, which Encap describes as valueadded specialty seed products, offered new opportunities for expanded sales and profits for those in the horticulture and agriculture industries. Encap claims that it developed as a trade secret a detailed plan for exploiting those opportunities. Encap s plan was conditionally disclosed in a confidential information memorandum (CIM) delivered to Scotts and other industry leaders beginning in 2002.

At about that time, Encap retained a company called Trans@active Partners, Ltd., to assist it in developing strategic partnership opportunities for achieving its goals. Although Trans@ctive has since ceased doing business and no longer has a copy of the non-disclosure agreement with Scotts, a log summary of its files states that in June 2002 Trans@ctive Managing Partner Robert Sexauer sent a copy of Encap s CIM to Mark Schwartz, Scotts Senior Vice President for Strategic Planning, after Schwartz signed and returned a non-disclosure agreement.

While Scotts initially expressed interest in Encap s products, platform technologies and marketing strategies, it later stopped communicating with Trans@ctive and Encap without explanation. Then in 2006, Scotts re-initiated contact with Encap and executed a ten-year confidentiality agreement. Further correspondence and discussions followed, but again no agreement. 2 In the meantime, Scotts was developing its own value-added specialty seed products. In August 2007, Scotts field tested Scotts Turf Builder Grass Seed with Water Smart Coating. In 2008, Scotts applied for trademarks for the terms Water Smart and EZ Seed. By 2009, Scotts was selling its EZ Seed product and coated Turf Builder (or Water Smart) Grass Seed in a consistent, and recognizable manner that was presented in Encap s 2002 CIM.

Of Michael Krysiak ¶ 26, ECF No. 136.) Scotts touted its new offerings and highlighted its own research and development program in its 2008 Annual Report: Research & Development will be front-and-center again in 2009 with the introduction of two of the most innovative grass seed products in decades.

New Turf Builder Water Smart Grass Seed is a full line of premium grass seed products that provide consumers high-performance seed wrapped in a revolutionary superabsorbent coating. The patented coating allows the seed to absorb up to 40% more water than ordinary seed. As a result, the seed needs to be watered less frequently, which allows consumers to more easily succeed in growing a beautiful Scotts lawn. At 12.) Encap argues that Scotts Turf Builder Grass Seed (coated seed) product, and its marketing focus and business positioning are all rooted in Encap s CIM. At 8, ECF No.

134.) Encap further contends that Scotts switched the majority of its product line over to the products disclosed in the CIM and adopted the disclosed business strategies with respect to those products. (Id.) In doing so, Encap claims that Scott not only infringed its patents but also misappropriated its trade secret. ANALYSIS The parties agree that Encap s misappropriation of trade secret claim is governed by Wisconsin law. Section 134.90 of the Wisconsin Statutes defines the phrase trade secret and sets 3 out the remedies available to one whose trade secrets are misappropriated. The statute defines a trade secret as information, including a formula, pattern, compilation, program, device, method, technique or process that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.

§ 134.90(1)(c). In addition, the owner must undertake reasonable efforts to maintain the secrecy of the information. Id.; see also Minuteman, Inc.

Alexander, 147 Wis. 2d 842, 851 52, 434 N.W.2d 773, 777 (1989). In other words, the key element of a trade secret is secrecy the information must be neither generally known nor readily ascertainable by proper means, and it must be kept secret. A trade secret has value only so long as the knowledge involved can be concealed. Rototron Corp. Lake Shore Burial Vault Co., Inc., 553 F.

691, 698 (E.D. With patents, the opposite is true: In order to foster invention and reward those who expand human knowledge, our nation grants a monopoly for the life of a patent on the invention or process disclosed in the claims. But the price for this reward is full disclosure. The knowledge passes into the public domain, and thereafter the patentee's only protection is that afforded under the patent law. The distinction is crucial in this case because Encap s purported trade secret is intertwined with its patents.

To the extent the information Encap claims as a trade secret has been disclosed or is easily ascertainable from its patents, it cannot be a trade secret. Kewanee Oil Co. Bicron Corp., 416 U.S. 470, 484 (1974) ( By definition a trade secret has not been placed in the public domain. Likewise, to the extent Encap s purported trade secret is manifest in its own marketing efforts for its patented products, it also cannot be a trade secret. Here, Encap has failed to identify with particularity any information that is not already apparent, given its own public disclosures.

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4 In a previous order denying Encap s motion to seal its CIM, the Court described its contents as follows: The memo contains a background of the company, photos of its products and its plant in Green Bay, and a basic description of the products and their potential role in the markets. The document is ten years old and does not contain any apparent trade secrets or underlying data, such as chemical formulas or manufacturing processes. Nor are there disclosures of any but the most basic marketing strategies, most of which are based on publicly available information, such as economic trends (as of 2002) and population.

(Order Denying Encap s Mot. To Seal at 1, ECF No. 26.) Encap has offered nothing since that order was entered that leads the Court to a different conclusion. In essence, Encap s claimed trade secret is a general marketing plan for its new products.

But a marketing concept or a new product idea, once it is implemented, cannot be a trade secret. Trade secret law is designed to protect a continuing competitive advantage, which a company enjoys due to confidential information it possesses, from destruction due to disclosure by a departed former employee. A marketing concept does not by confidentiality create a continuing competitive advantage because once it is implemented it is exposed for the world to see and for competitors to legally imitate. Westab, Inc., 529 F.2d 896, 900 (6th Cir. The United States District Court for the Northern District of Illinois reached the same conclusion applying Illinois law in Om v.

Weathers, No. 91-C-4005, 1992 WL 151553 at.6 (N.D.

June 23, 1992): Legal protection for advertising slogans and marketing concepts is not found under the law of trade secrets. (quoting Richter, 529 F.2d at 900); see also Silipos, Inc. 2205, 2006 WL 2265055, at.4 (S.D.N.Y. 8, 2006) ( Trade-secret protection does not extend to information regarding market strategies. (internal quotation marks omitted)). Even if marketing plans and sales strategies could constitute a trade secret, Encap has failed to identify with any particularity what the secret information is that its marketing plan and/or 5 business strategy contains.

It is not enough for a plaintiff to generally describe the kind of information it claims as a trade secret or explain why it is valuable. The party asserting such a claim must tell the party it accuses of misappropriating its trade secret specifically what the secret is. If it does not, how can the other party defend itself? See Marine Travelift, Inc. Marine Lift Systems, Inc.

10-C-1046, 2013 WL 6255689, at.5 (E.D. 4, 2013); see also IDX Systems Corp. Epic Systems Corp., 285 F.3d 581, 584 (7th Cir. 2002) ( A plaintiff must do more than just identify a kind of technology and then invite the court to hunt through the details in search of items meeting the statutory definition.

(citing Composite Marine Propellers, Inc. Van Der Woude, 962 F.2d 1263, 1266 (7th Cir. In its response brief, Encap calls its trade secret a strategic business plan in the retail lawn and garden industry that was a compilation producing a strategic understanding of unmet market and consumer needs. 134, citing Pl. S Answer to Interrog. 13 at 12 30, ECF No.

129-3.) Somewhat more specifically, Encap says This strategic business plan was. A roadmap as to how to transform the lawn and garden industry by going beyond the seed itself by identifying business strategies for specialty seed products. This was accomplished through a unified business strategy that identified markets for and educated retail buyers about value added components that make life easier for their consumer and the seed itself; disclosed how to influence consumer behavior though smart products that go beyond the seed; and promoted value-added specialty seed products in a way that the company producing such products will be viewed as innovative and revolutionary so that company can come to realize that more value means higher margins and more profits.

1 2.) Still, what Encap has provided is a description of what it claims to be a trade secret, not the trade secret itself. At oral argument, the court asked counsel for Encap to state what the trade secret actually is. Counsel referenced a section of the CIM which noted the need for landscape workers 6 to work efficiently because of the seasonal nature of the work. But as the court noted, the fact that workers need to be efficient is not a trade secret. This type of very basic and vague idea cannot be a trade secret.

See Composite Marine Propellers, Inc., 962 F.2d at 1266 (rejecting claim that marketing plans and strategies constituted trade secret and observing plaintiff cannot mean that the idea of making marine propellers and selling them through the usual channels in the boating industry is its trade secret ). Encap alleges that Scotts misappropriated its trade secret sometime after August 2007.

At 7, ECF No. 134.) By that time, several of Encap s patents had been issued, or the applications published, and Encap had been selling its own products embodying the patents for more than five years. As Scotts chart showing the various aspects of Encap s purportedly secret business strategy shows, all of the information that Encap claims was confidential had already been disclosed in the patents that had been issued or in the literature Encap used to market its own products. At 21 23, ECF No. 126.) The general information about potential customers, including the numbers of landscapers/lawn care establishments, established golf courses, schools and universities, and homeowners with lawns, was readily available from the public sources cited by Encap in the CIM. None of the information is customer specific or concerned specific sales strategies beyond communicating the advantages in ease and efficiency of Encap s products to the target audiences.

The cases cited by Encap in support of its contention that this information could amount to a trade secret are readily distinguishable. For example, Minnesota Mining & Manufacturing Co. Pribyl, 259 F.3d 587 (7th Cir. 1991), a case heavily relied on by Encap, involved a more than 500-page manual consisting of operating procedures, quality manuals, trade manuals, process standards and operator notes for using 3M s equipment that makes resin sheeting. The manual disclosed specific proprietary processes regarding cleaning procedures, temperature settings, 7 safety protocols and equipment calibrations.

In Centrifugal Acquisition Corp. 2012), the trade secret concerned a proprietary process for spin casting battery terminals and had been developed over twenty years of trial and error. As the court noted, anyone can try their hand at spin casting a battery terminal, but the end result would not be good enough to compete with terminals made using the Proprietary Process.

The trade secret in Moon also involved customer lists, vendor lists and pricing and margin information, all of which the court found was not generally known or readily ascertainable, and over which secrecy had been maintained. And in Edgenet Inc. GSI AISBL, 742 F.

2010), the plaintiff s master collection and spreadsheet compiled detailed product data that was more than just a compilation of public data. At 1026 (emphasis added). Because the perhaps publicly available data was compiled in a unique way, the court held (at the motion to dismiss stage) that it was plausible that the spreadsheet was not readily ascertainably by reason of being compilations. Rather than a detailed proprietary process or list of raw data compiled in some special way, the CIM consists of very general information about the market for horticultural and agricultural products and touts the advantages of Encap s products. The cases relied upon by Encap involve far more specific information than any of the information Encap has identified here.

They do not provide the support Encap s claim needs to survive. Accordingly, and for the reasons set forth above, Scotts motion for summary judgment is granted and Encap s claim for misappropriation of trade secret is dismissed. SO ORDERED this 28th day of August, 2014. S/ William C. Griesbach William C.

Griesbach, Chief Judge United States District Court 8.