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November 2, 1994

FRED A. LAWSON, Plaintiff,
GETTY TERMINALS CORP. and GORDON RODGERS, Individually and in his Capacity as Terminal Manager for Getty Terminals Corp., Defendants.

The opinion of the court was delivered by: SHIRLEY WOHL KRAM


 In this employment discrimination action, defendants Getty Terminals Corp. ("Getty") and Gordon Rodgers ("Rodgers") move, pursuant to Federal Rule of Civil Procedure 56, for summary judgment dismissing the complaint in its entirety. Alternatively, defendants move, pursuant to Rule 56, for partial summary judgment (1) dismissing that portion of the complaint that fails to establish a prima facie case; (2) dismissing plaintiff's claim for punitive damages; and (3) limiting compensatory damages to the sum of $ 50,000. For the reasons set forth below, defendants' motion for summary judgment is granted and the complaint is dismissed in its entirety.


 I. Employment at the Newark Terminal

 Defendant Getty operates a gasoline terminal at 86 Doremus Avenue, Newark, New Jersey (the "Newark Terminal"), which receives and distributes gasoline to Getty gasoline stations. The Newark Terminal operates seven days per week, 24 hours per day. Five terminal supervisors work at the Newark Terminal according to a schedule of day, evening and night shifts.

 Terminal supervisors are responsible for supervising the daily operation of the truck fleet at the terminal including, inter alia, (1) receiving product; (2) gauging storage tanks; (3) reconciling product disbursements with book inventory; (4) preparing delivery schedules; (5) supervising terminal personnel; (6) verifying product quantity received at the terminal; and (7) dispatching deliveries. As most truck maintenance and repairs take place during the day, the responsibilities of the terminal supervisors on the day shift are greater than those on the night shift.

 On July 11, 1985, plaintiff Fred A. Lawson ("Lawson"), an African-American male, commenced employment at Getty as a tractor-trailer driver. On February 18, 1986, Lawson was promoted to the position of terminal foreman on the night shift at the Newark Terminal. *fn2" In March 1989, the job title for terminal foreman was changed to terminal supervisor.

 In July 1990, defendant Rodgers commenced employment as a terminal superintendent in charge of all terminal supervisors at the Newark Terminal. Rodgers designated Willie Smith Jr. ("Smith"), an African-American male, as the direct supervisor of the remaining terminal supervisors, including Lawson. Smith was the most senior terminal supervisor at Newark Terminal with more than twenty years of experience. The other terminal supervisors during the course of Lawson's employment included: (1) Raymond Joseph Cody ("Cody"), a white male; (2) Stanley Bittner ("Bittner"), a white male, who held the position of terminal supervisor from 1985 until he was discharged on April 12, 1993; (3) Kenneth Sharpe ("Sharpe"), an African-American male, who was promoted to the position of terminal supervisor on April 14, 1993 to replace Bittner; (4) Ivan Janovsky ("Janovsky"), a white male, who held the position of terminal supervisor from March 1985 until he was discharged on August 8, 1988; (5) Joseph McGrath ("McGrath"), a white male, who replaced Janovsky and held the position of terminal supervisor from July 1989 until October 2, 1992; (6) John L. Kerper ("Kerper"), a white male, who acquired the responsibilities of terminal supervisor in addition to his responsibilities as lube oil manager after McGrath was discharged; and (7) Donato Gallucci ("Gallucci"), a white male, who worked at the Newark Terminal from December 1988 until April 1989. Gallucci had been employed with Getty from March 1981 until October 1986 as a terminal foreman at Getty's Mount Vernon Terminal. On April 28, 1989, he was transferred back to the Mount Vernon Terminal at the same rate of pay.

 On February 12, 1991, Rodgers arranged for Lawson and McGrath to share a swing shift wherein Lawson worked for three months on the afternoon shift while McGrath worked on the night shift, followed by three months in which Lawson and McGrath switched shifts. On February 10, 1992, when Lawson returned to the day shift, Rodgers contends that it became apparent that Lawson was unable to handle the responsibilities of the shift.

 II. Lawson's Job Performance

 According to Rodgers, Lawson failed to perform the requirements of his job in a satisfactory manner, including failing to follow company policy and procedure and making numerous careless errors. Specifically, Rodgers contends that, upon encountering a problem on his shift, Lawson failed to make decisions, instead asking other people to make decisions for him. In addition, Lawson was often reprimanded for failing to complete work before the end of his shift. For example, terminal supervisors are required to complete an inventory report listing the amount of product in each gasoline tank at the end of their shifts. The terminal supervisor is then required to reconcile this amount with the book inventory. According to Rodgers, Lawson frequently failed to investigate discrepancies between the physical inventory and the book inventory, instead leaving the discrepancy for the terminal supervisor on the next shift to reconcile.

 Terminal supervisors are also required to complete an inventory gauge book. Rodgers contends that he "constantly" reprimanded Lawson for failing to complete the log book. Lawson also failed to enter accurate data on inventory and "run out" reports. *fn3" In addition, Lawson often precluded barges from discharging their product offshore by failing to relieve the terminal operator on the dock so that the terminal operator could take a physical inventory of the product at the terminal.

 Terminal supervisors are also responsible for filling out surcharge forms charging station operators for delivery problems. Rodgers contends that Lawson frequently failed to surcharge station operators and, when he did fill out the surcharge form, often filled it out inaccurately. In addition, Lawson often failed to notify station operators of any changes in delivery schedules and failed to modify delivery schedules to accommodate station operators.

 On February 5, 1992, a driver who was scheduled to make a delivery to Pennsylvania did not have the proper fuel tax sticker on his truck. In order to attach the trailer to a truck with a proper sticker, Lawson instructed the driver to drop his loaded trailer under the loading racks. This procedure violated company policy, however, and Rodgers contends that dropping a trailer full of gasoline under the loading racks could have led to serious safety problems.

 III. Annual Performance Review and Probationary Period

 In January 1992, Rodgers performed an annual review of Lawson's job performance, giving him an overall rating of between "competent" and "marginal." Rodgers concluded that "Fred must exert himself and make significant progress to maintain his position in the department." See Job Performance Review, dated January 27, 1992, annexed to the Exhibits as Exh. "S," at 2.

 Prior to Lawson's review, Rodgers informed Lawson that he was dissatisfied with Lawson's performance. Rodgers indicated that, as a result of Lawson's poor performance, he would no longer be permitted to share the swing shift with McGrath, and that, instead, he would be placed permanently on the night shift. In addition, on February 11, 1992, Smith verbally counseled Lawson regarding Lawson's failure to fulfill his responsibilities as a terminal supervisor.

 On February 14, 1992, Lawson complained to Maureen Hunstein ("Hunstein"), an employee in Getty's human resources department, that he believed he was being discriminated against because he was not permitted to work on the day shift. Subsequently, on February 19, 1992, Rodgers informed Lawson that he was being placed on probation for ninety days as a result of his poor job performance. Thereafter, on February 24, 1992, Lawson requested an outline of his job responsibilities as terminal supervisor and on March 9, 1992, Rodgers provided Lawson with a job description. The next day, Smith ...

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