Treusch v. Ctr. Square Supermarket, LLC

Decision Date31 January 2013
Docket NumberCivil No. 11–4874 (JBS/JS).
Citation921 F.Supp.2d 336
CourtU.S. District Court — District of New Jersey
PartiesThomas TREUSCH, Plaintiff, v. CENTER SQUARE SUPERMARKET, LLC, and United Foods & Commercial Workers Union, Local 152, Defendants.


George R. Szymanski, Esq., Law Offices of George R. Szymanski, Laurel Springs, NJ, for Plaintiff Thomas Treusch.

Thomas J. Bradley, Esq., McBreen & Kopko, Philadelphia, PA, for Defendant Center Square Supermarket, LLC.

Steven J. Bushinsky, Esq., O'Brien, Belland & Bushinsky, LLC, Cherry Hill, NJ, for Defendant United Foods & Commercial Workers Union, Local 152.


SIMANDLE, Chief Judge.


This matter is before the Court on Defendant United Foods & Commercial Workers Union, Local 152's (Local 152) motion for summary judgment [Docket Item 23] and Defendant Center Square Supermarket, LLC's (“Center Square” or “ShopRite”) motion for summary judgment [Docket Item 28]. Plaintiff Thomas Treusch (Plaintiff or “Mr. Treusch”) has filed opposition to both motions.

The instant action arises out of the Plaintiff's discharge from employment by Defendant Center Square. The Plaintiff maintains he was falsely accused of sexual harassment and thereby wrongfully terminated. Specifically, the Plaintiff argues that his gender was a significant contributing factor to the decision to terminate him. The Plaintiff also maintains that Local 152 failed to adequately represent him and arbitrate his grievance. Consequently, the Plaintiff filed this suit alleging breach of contract, breach of fiduciary duty and gender discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5–1 et seq. (“NJLAD”), against the Defendants. The Defendants now move for summary judgment arguing that the Plaintiff's complaint for breach of contract and breach of fiduciary duty is time barred and that the Plaintiff has failed to adduce sufficient evidence to establish a prima facie case of reverse gender discrimination.

For the reasons discussed below, the court will grant both motions for summary judgment. The court finds that the Plaintiff's claims for breach of contract and breach of fiduciary duty arise under Section 301 of the National Labor Relations Act and are therefore subject to a six-month limitations period. Since the Plaintiff's complaint was filed more than six months after his final appeal to the Union was denied, his claims for breach of contract and breach of fiduciary duty against Center Square and the Union are time barred. As for the Plaintiff's NJLAD claim, the Plaintiff has not put forth sufficient evidence to establish his prima facie case for reverse gender discrimination against Center Square or Local 152 and therefore no rational jury could find that the Plaintiff was discriminated against in violation of the NJLAD.

Accordingly, the court will grant both motions for summary judgment and Plaintiff's complaint will be dismissed.


Plaintiff Thomas Treusch was employed by Center Square, also known as ShopRite, as a produce clerk from July 28, 2006 until his discharge on December 6, 2009 and was 53 years old at the time of his termination. (Center Square's Statement of Uncontested Facts ¶ 1.) Plaintiff was a member of Defendant Local 152 throughout his employment with Center Square. ( Id. at ¶ 3.) Local 152 had a Collective Bargaining Agreement (“CBA”) with Center Square which provided, among other things, that union members could only be terminated upon a showing of “just cause.” ( Id. at ¶ 4.)

The Plaintiff did not have an oral or written employment contract with Center Square. However, the Plaintiff received a New Associate Welcome Packet on June 17, 2006, prior to working for Center Square, which contained several store policies, including Center Square's policy for handling sexual harassment. (Pl.'s Ex. A.) The Plaintiff also signed an Acknowledgment form on June 17, 2006 which stated:

I acknowledge that if I am employed by ShopRite, my employment will be “at will” which means that either myself or ShopRite may terminate my employment with or without cause at any time.


I understand that if I am employed by ShopRite, my employment will not be for any specified term and may be terminated by me or ShopRite for any lawful reason.


I understand that the above conditions cannot be altered or amended, except in writing.

(Center Square's Reply Ex. A, Acknowledgment at 1.)

During July 2009, Plaintiff was advised by two of Center Square's owners, Tom and Maria Bottino, that a female co-worker named Pattie Johnson had lodged a complaint of sexual harassment against him. ( Id. at ¶ 5.) Plaintiff categorically denied Pattie Johnson's allegations to the Bottinos. ( Id. at ¶ 5; Pl.'s Ex. B, Thomas Treusch Deposition taken January 18, 2012 (Treusch Dep.) at 25:12–26:23.) The Bottinos decided not to take any further action against the Plaintiff with regard to Johnson's complaint. However, Plaintiff was reminded by the Bottinos that Center Square had a policy against sexual harassment and he was warned that he should not engage in any illegal behavior. The Plaintiff was also cautioned by the Bottinos to stay away from Ms. Johnson and not to ask her out. (Treusch Dep. at 31:11–16.)

In August 2009, a fellow Center Square employee, Nick Schwegel, reported an incident involving the Plaintiff and a twenty-one year old female employee, Nicole Fach, to Human Resources Assistant, Lauren Wynne. (Pl.'s Ex. D, Deposition of Nicholas Schwegel taken June 20, 2012 (“Schwegel Dep.”) at 8:3–9:10.) Nick told Lauren Wynne that the Plaintiff made Nicole feel uncomfortable during her break by making inappropriate comments to her and grinning at her in a sexual manner. (Schwegel Dep. at 6:4–7:4.) Specifically, Schwegel, Nicole Fach and another Center Square employee, Deanna, were sitting outside at a picnic table during their lunch break discussing Nicole's recently acquired tattoos. The Plaintiff was sitting near the Plaintiff but was not included in the conversation, according to Schwegel. Nicole then showed Schwegel and Deanna her tattoos which were located on the small of her back by her hips. At this point, Schwegel testified that the Plaintiff “made a comment about her looking good and kind of grinned in a very sexual manner.” (Schwegel Dep. at 6:8–10.)

In response to this comment, Schwegel testified that they ignored the Plaintiff and continued on with their conversation. Deanna made a comment about how her parents would kick her out of the house if she got another tattoo. Nicole made a similar comment that she would also be kicked out of the house for her tattoos. Then, according to Schwegel, the Plaintiff turned to Nicole and said, “If you ever got kicked out of your house, I would make room for you in my place any time.” (Schwegel Dep. at 7:15–20.) Schwegel understood this comment to be the Plaintiff making a pass at Nicole. At that point, Nicole, Deanna and Schwegel left the picnic area and ended their break. On their way back into the store, Nicole made a comment to Schwegel that she felt uncomfortable. (Schwegel Dep. at 8:1–8.) Schwegel then decided to go to Lauren Wynne to report the incident because he felt the Plaintiff was serious in making a pass at Nicole and he did not want Nicole to feel uncomfortable in the workplace.

In particular, Schwegel testified that, “I wouldn't have taken it up if he said, ‘Just kidding’ or Nicole didn't feel uncomfortable, but he didn't say, ‘I was just kidding.’ He made the grin and it was a very serious statement to be making. It's not something you just say to a woman and then forget about it. And she felt very uncomfortable by the statement.” (Schwegel Dep. at 10:15–21.)

In response to this situation, Lauren Wynne spoke with Nicole. Nicole indicated that she did not want Lauren to pursue the matter any further because she didn't want to get the Plaintiff into trouble and “felt like maybe she could handle the situation.” (Pl.'s Ex. H, Deposition of Lauren Wynne taken June 20, 2012 (Wynne Dep.) at 4:16–25.)

The Plaintiff recalled the August 2009 incident in his deposition. The Plaintiff testified that Nicole was sitting at another table in the break room “commenting to a couple of other coworkers that she had gotten a couple of tattoos.” (Treusch Dep. at 51:4–9.) Since the tattoos were not visible, the Plaintiff testified that Nicole stood up and pulled her top up in the back and lowered her jeans down in order to show the tattoos. (Treusch Dep. at 51:11–14.) The Plaintiff maintained that Nicole was showing everyone in the break room and that other people were making comments about how nice they looked. (Treusch Dep. at 51:17–18; 54:18–21.) The Plaintiff recalled that he may have said something about how the tattoos looked nice and he believed Nicole thanked him for the comment. (Treusch Dep. at 54:18–21; 56:3–5.)

However, the Plaintiff denied making any statement that Nicole could move in with him if her parents kicked her out. Specifically, Plaintiff testified that, “I never made a comment like that in my life.” (Treusch Dep. at 56:1–2.) The Plaintiff also testified that Nicole never discussed that day with him after it occurred and that her behavior toward the him did not change in anyway after that day. (Treusch Dep. at 56:11–21.)

Later, on December 1, 2009, Nicole Fach filed a formal complaint of sexual harassment against the Plaintiff as a result of a second incident which occurred on November 20, 2009. Specifically, Nicole Fach complained that while she was in the store cleaning registers, Plaintiff approached her and made a comment about how she looked good in sweats and he liked her better this way. Then Nicole claimed Plaintiff grabbed her hand and kissed it. (Pl.'s Ex. C, Deposition of Nicole Fach taken June 20, 2012 (“Fach Dep.”), ex. Fach–1, December 1, 2009 Statement.) Nicole then testified that she pulled her hand back and said that her “hands were in a dirty bucket of water and that was...

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    ...agreement; and (2) the union breached its duty of fair representation. See 39 U.S.C. § 1208(b); Treusch v. Center Square Supermarket, LLC, 921 F. Supp. 2d 336, 344 (D.N.J. 2013) (explaining that federal statutes preempt state law contract claims arising out of breaches of collective bargain......
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    ...and employment discrimination contained in the NJLAD are expressly applicable to labor unions." Treusch v. Ctr. Square Supermarket, LLC, 921 F. Supp. 2d 336, 351 (D.N.J. 2013) (citing N.J.S.A. 10:5-12(b)). And, for instance, Plaintiff asserts that Defendant told her "to provide documentatio......
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