In this employment retaliation lawsuit, a federal judge in New Jersey dismissed a lawsuit filed by two former FedEx drivers who claimed they were unlawfully fired because of an argument with another FedEx employee and postings by them on social media about the incident. Shinn v. FedEx, Docket No. 1:16-cv-777 (NLH/KMW) (D.N.J., September 7, 2018)

FedEx City Drivers pick up and deliver freight to customers. Plaintiffs Stanley Shinn and Paul Ellis were City Drivers for defendant FedEx in New Jersey for many years.

The incident that led to plaintiffs termination occurred on April 29, 2015 in the break room of the employer’s facility. At that time, Steve Buckley, another employee, approached plaintiffs and others and began talking about a “Facebook fag” and “union fag.” Shinn asked Buckley what he was talking about, and Buckley said, “I’m talking about you and your girlfriend Paul Ellis.” Thereafter, Shinn and Buckley had less heated conversation about the incident.

Soon thereafter, Shinn was terminated. Shinn filed an internal appeal of his termination. Defendant contended that the reason for Shinn’s termination was the threat he made which violated its workplace violence policy. The employer upheld the termination on appeal.

Two months later, Ellis and Shinn posted a conversation on Facebook. Referring to Buckley, Shinn complained that a “low snake” was trying to “kiss a little FedEx ass.” In response, Ellis said Buckley “is a scumbag,” and, “[h]e’s gonna have an accident on the dock.”

FedEx determined that Ellis’s Facebook posts violated the workplace violence provisions in its employee handbook.  Consequently, FedEx discharged Ellis. Ellis also filed an internal appeal of his termination with FedEx, which upheld his termination.

Plaintiffs filed a wrongful termination lawsuit in federal court, asserting claims of retaliation under the New Jersey Law Against Discrimination and common-law wrongful termination. Ellis also filed a Family and Medical Leave Act claim, alleging that his discharge was based on a prior medical leave in connection with a back injury.

FedEx filed a motion for summary judgment, asking the court to dismiss the plaintiffs’ lawsuit. Defendant claimed that plaintiffs failed to demonstrate a causal connection between the dispute with Buckley, the other employee, the online post, and their termination. In response, plaintiffs argued that there was a “temporal proximity” between the break room incident, the Facebook posts and their firing. Plaintiffs argued that the “temporal proximity” could provide an “inference of retaliation.”

The Court disagreed, granted defendant’s motion for summary judgment and dismissed the plaintiffs’ complaint. The Court held that:

Temporal proximity alone will be insufficient to establish the necessary causal connection, however, when the temporal relationship is not “unusually suggestive.” … [I]f temporal proximity is not clearly suggestive standing alone, a ‘time plus’ other intervening retaliatory acts will be required… .

Here, the Court was unable to find causation based on timing alone and, as plaintiffs provided no other basis for the Court to find a causal link between the discharge and some pretext or discriminatory conduct behind the employer’s action, the Court granted summary judgment in favor of defendant.

The case is attached here – Shinn v. FedEx

Vanarelli & Li, LLC website: