A federal judge in New Jersey has dismissed a lawsuit filed by two former FedEx drivers who claimed they were unlawfully fired because of an argument with another employee and because of social media posts that followed the incident.
U.S. District Judge Noel Hillman, sitting in Camden, granted summery judgment to FedEx in the suit filed by plaintiffs Stanley Shinn and Paul Ellis.
Hillman said the two employees—drivers assigned to operate out of the delivery company’s facility in Delanco—failed to demonstrate a causal connection between the dispute with the other employee and the online post, and their termination.
“Defendants argue that plaintiffs cannot make a prima facie case because they have not established a causal link. The court agrees,” Hillman wrote in the Sept. 7 decision.
According to the decision, Shinn worked for FedEx from November 2003 to May 2015, and Ellis worked for the company from 2004 to July 2015.
The key incident occurred on April 29, 2015, in the break room at the Delanco facility.
Another employee, identified as Steve Buckley, approached Ellis, Shinn and others, and began talking about “Facebook fag” and “union fag,” the decision said, citing testimony from another employee. Shinn asked Buckley what he was talking about, and Buckley said, “I’m talking about you and your girlfriend Paul Ellis,” the suit claims.
Shinn and Ellis said nothing about the incident, but another employee reported it to company security officials, Hillman noted.
Shinn was fired on May 21, 2015.
After that came the Facebook posts at issue, the first coming from Shinn on June 28, 2015, where he complains that a “low snake” was trying to “kiss a little FedEx ass.” Hillman said that statement apparently referred to Buckley.
“He’s a scumbag,” Ellis said in one post; “He’s gonna have an accident on the dock,” he said in another, according to the decision.
Ellis was fired on July 9, 2015.
Both men then filed their wrongful termination lawsuits in federal court, bringing claims of retaliation under the New Jersey Law Against Discrimination and common-law wrongful termination. Ellis added a Family and Medical Leave Act claim, which alleged that his firing also was based on a prior medical leave in connection with a back injury.
Hillman said the plaintiffs did not provide enough evidence to survive FedEx’s summary judgment motion.
“The employer must provide evidence that will allow the fact finder to determine that the decision was made for non-discriminatory reasons,” Hillman said. If that threshold is met, Hillman said, a plaintiff must show that there was some pretext or discriminatory conduct behind the employer’s action.
Shinn and Ellis had argued that there was a “temporal proximity” between the break room incident, the Facebook posts and their firing. That, they argued, could provide an “inference of retaliation.”
“Temporal proximity alone will be insufficient to establish the necessary causal connection,” the judge said. “Plaintiff provided no other basis for the court to find a causal link.”
The plaintiffs retained Graham Baird of the Law Office of Eric Shore in Philadelphia. David Fryman of the Philadelphia office of Ballard Spahr represented FedEx.
Neither returned calls seeking comments on the decision.