Dubuche v . Emery Worldwide Airlines CV-00-556-B 10/09/02
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Karl V . Dubuche
v. Civil N o . 00-556-B Opinion N o . 2002 DNH 181 Emery Worldwide Airlines, Inc.
MEMORANDUM AND ORDER
Karl V . Dubuche brings suit against his former employer,
Emery Worldwide Airlines, Inc. (“Emery”), alleging racial
discrimination based upon claims of a hostile work environment,
failure to promote, and retaliation. See 42 U.S.C. § 2000e-2(a),
3(a) (1994) (Title V I I ) ; 42 U.S.C. § 1981 (1994). Emery moves
for summary judgment, contending that Dubuche has failed to
establish a prima facie case of discrimination o r , alternatively,
has failed to demonstrate that Emery’s actions were a pretext for
discrimination. Emery also moves to strike portions of certain
affidavits submitted by Dubuche. For the reasons set forth
below, I grant Emery’s motion for summary judgment as it pertains
to Dubuche’s claims of a hostile work environment and
discriminatory failure to promote, and deny Emery’s motion as it
pertains to Dubuche’s claim of retaliation. I also deny Emery’s motions to strike.1
I. BACKGROUND2
Emery operated a mail processing facility in Nashua, New
Hampshire under the terms of a contract with the United States
Postal Service. Karl Dubuche, who states that he is a
“Carribean-born black,” worked as a mail sorter at Emery
beginning in May 1998. When he applied for the job, Dubuche told
Andrew Teebagy, the supervisor who interviewed him, that he may
be late for work because he depended upon others for
transportation. Teebagy told him that this would not be an
issue, as long as Dubuche worked hard. Soon after he started at
Emery, Dubuche again asked Teebagy whether his lateness would be
a problem. Teebagy reiterated what he had previously told
1 Because they contain hearsay, are insufficiently specific, or are argumentative, conclusory, or speculative, Emery asks the court to strike portions of the affidavits of Dubuche, Jason Kendrick, and Anthony Hanneman. I give the affidavits what credence is due, in light of the rules pertaining to the content of affidavits. See Fed. R. Civ. P. 56(e). On that basis, defendant=s motions to strike the affidavits are denied. 2 I construe the evidence in the light most favorable to Dubuche, the non-moving party, and draw all reasonable inferences in his favor. See Navarro v . Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001) (explaining the operation of Fed. R. Civ. P. 5 6 ) .
-2- Dubuche. Dubuche frequently worked overtime and was a hard
worker. There i s , however, no dispute that he was often late for
work.
During the fall of 1998, Dubuche began applying for various
promotions. He applied for one of two ATAG operator positions.3
Both positions, however, were awarded to other black employees
who, according to Emery, were more qualified than Dubuche.4
Dubuche also applied for one of four seasonal quality assurance
positions, but again the jobs were awarded to employees who
apparently had better credentials than Dubuche.
Dubuche eventually was offered a promotion to ramp clerk.
However, Dubuche did not accept the offer immediately because he
wanted to speak with his wife before accepting the job.
Ultimately, Dubuche was not promoted. According to Emery, it
rescinded the job offer because Dubuche did not respond in a
3 In Emery’s hierarchy, mail sorters were at the bottom. Positions such as “ramp clerk” and “ATAG operator” were coveted because they paid more and involved far less, if any, manual labor. Typically, mail sorters were responsible for lifting and hauling mail bags and packages. 4 Dubuche contends that he was the only person whose parents were both black. Regardless of Dubuche’s description of the two ATAG operators as being “half-black,” Emery’s internal records indicate that both ATAG operators were “black.”
-3- timely manner.
When Scott Sanders became his immediate supervisor, Dubuche
was routinely denied the opportunity to “10-Key.” Essentially,
the “10-Key” operator was responsible for entering information
regarding mail bundles into a computer. “10-Keying” was one of
the duties of a mail sorter. The “10-Key” duty was not a
promotion, but entailed far less physical labor than mail
sorting. Although Dubuche received a high test score on the 10-
Key machine, Sanders would not assign Dubuche to “10-Key.”
Dubuche was, however, assigned to “10-Key” by other shift
managers.
At or about the same time Dubuche was being denied
promotions and the opportunity to “10-Key,” he was exposed to
situations that he found hostile and discriminatory. For
instance, during a discussion among co-workers about Emery’s
tuition reimbursement policy, Dubuche asked Sanders to explain
the policy. In front of Dubuche’s co-workers, Sanders stated
that Dubuche need not worry about the policy, as it only applied
to people who went to school.
In September of 1998, Elizabeth Larrea, a shift manager,
compared Dubuche and Anthony Hanneman, Dubuche’s co-worker, to
-4- the men who shoveled coal in the engine room of the Titanic.
Dubuche construed the comment as comparing him to a slave. On
another occasion, Dubuche and Hanneman overheard a voice on
Teebagy’s hand-radio, which said “[c]ould you send a couple of
black guys to the ball dock?” Hanneman Aff. ¶ 6; Dubuche Dep.
202-03. Unloading trucks at the ball dock was the most labor
intensive job at Emery. Dubuche found the remark somewhat
offensive.
Because he needed his job and did not want to cause
problems, Dubuche did not immediately report the above incidents.
In November 1998, however, he verbally complained to Emery’s
general manager, Michael Bruni. Subsequently, he also spoke with
Teebagy, Robert Knowles, and other members of Emery’s upper
management. Soon after he complained, Sanders began to reprimand
Dubuche for being tardy. Emery contends that Sanders verbally
notified Dubuche that his tardiness was a problem in June 1998.
Dubuche denies receiving such a notice. Regardless, Sanders
issued Dubuche his first written warning for tardiness on January
1 9 , 1999.
Dubuche received a final written warning for tardiness on
-5- January 2 1 , 1999.5 Upset at receiving the final warning, Dubuche
approached Sanders to discuss the issue. During the discussion,
Dubuche told Sanders that he believed Sanders’ actions in issuing
the warnings and denying him the opportunity to “10-Key” were
racially motivated. Sanders became angry, told Dubuche he was
fired, and ordered him to leave the premises. Bruni and other
members of upper management immediately responded to the
situation and, after speaking with Dubuche, Bruni told him not to
return to work until he submitted a written complaint regarding
his claims of racial discrimination. Dubuche was not paid for
the time he missed while he drafted his complaint at home.
In early February, 1999, Bruni concluded his investigation
of Dubuche’s written complaint, determining that it was
unfounded. In a meeting with Dubuche, Bruni told him the outcome
of his investigation. Bruni also told him that he must be on
time for work, and that he would be watching him. Thereafter,
management closely scrutinized Dubuche’s work habits. Unhappy
with the results of the investigation and the scrutiny he found
himself under, Dubuche filed a charge of racial discrimination
5 Dubuche contends that the January warnings were later “rescinded” by human resources.
-6- against Emery with the New Hampshire Human Rights Commission on
February 2 6 , 1999.
Approximately two weeks after filing his Human Rights
Commission complaint, Dubuche received a warning for taking an
extended break. About a week later, Dubuche received a final
written warning for violating Emery’s attendance and punctuality
policy. The warning stated that Dubuche needed to have perfect
attendance and punctuality for 60 days or be subject to
discipline, including termination. Dubuche contends that this
warning was later rescinded.
On March 2 5 , 1999, Emery’s electronic time card system did
not record Dubuche’s hours for the day. Emery kept time records
for its employees by instructing them to “swipe” an electronic
card through a sensor for its computerized time system at the
beginning and end of their shift. A separate security system
also recorded each employee’s time in and out of the Emery
complex. It was not uncommon for the time card system to
malfunction or fail to record an employee’s hours, and Dubuche
had experienced such difficulties prior to March 1999. If the
system failed to record an employee’s hours, a manager would ask
the employee how many hours he or she worked, and the manager
-7- would then manually enter the time into the system. This was
done informally, and employees were not asked to sign a time card
or payroll document attesting to the information they provided
the manager.
On March 2 6 , 1999, Bruni and Judy Guilmette, Emery’s human
resources manager, met with Dubuche to discuss the time system’s
failure to record his work hours for the previous day. Bruni and
Guilmette concealed the fact that the security system had logged
Dubuche’s entry into the building at 4:10 p.m. and had logged him
out at 1:08 a.m. Instead, they told Dubuche that they had no
record of him working the previous day. They asked Dubuche what
time he arrived for work on March 2 5 . Dubuche stated at his
deposition, “I think it was 4:00. I don’t remember exactly the
time.” Dubuche Dep. 1 7 1 , 173. Dubuche admitted that it could
have been past 4:00 p.m. Bruni asked Dubuche to sign a time card
attesting to the fact that he had started work at 4:00 p.m. and
had ended work at “1:05 - 1:07" a.m. After he signed the time
card, Bruni showed Dubuche the security system log, which
indicated that Dubuche had entered the building at 4:10 p.m. and
had left at 1:08 a.m. Bruni informed Dubuche that by signing the
time card, which indicated that Dubuche arrived at 4:00 p.m., not
-8- 4:10 p.m., Dubuche had falsified a payroll document. Dubuche was
terminated on March 3 0 , 1999 for this action.
On August 3 , 1999, Dubuche filed a second charge of
discrimination with the New Hampshire Human Rights Commission,
alleging retaliation. Dubuche was issued a right-to-sue letter
for each complaint filed with the New Hampshire Human Rights
Commission. He filed suit in this court on December 4 , 2000,
alleging that Emery violated Title VII and 42 U.S.C. § 1981 by
discriminating against him because he was black. More
specifically, he alleges that Emery refused to promote him and
forced him to work in a hostile work environment. Dubuche also
alleges that Emery violated Title VII’s anti-retaliation
provision when it suspended him without pay, subjected him to
heightened scrutiny, and ultimately terminated him under false
pretenses.
II. STANDARD OF REVIEW
Summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
-9- is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). A genuine issue is one “that properly can be resolved
only by a finder of fact because [it] may reasonably be resolved
in favor of either party.” Anderson v . Liberty Lobby, Inc., 477
U.S. 2 4 2 , 250 (1986). A material fact is one that affects the
outcome of the suit. See id. at 248.
In ruling on a motion for summary judgment, I must construe
the evidence in the light most favorable to the non-movant. See
Navarro, 261 F.3d at 9 4 . The party moving for summary judgment,
however, “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those
portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v .
Catrett, 477 U.S. 3 1 7 , 323 (1986). Once the moving party has
properly supported its motion, the burden shifts to the nonmoving
party to “produce evidence on which a reasonable finder of fact,
under the appropriate proof burden, could base a verdict for i t ;
if that party cannot produce such evidence, the motion must be
granted.” Ayala-Gerena v . Bristol Myers-Squibb Co., 95 F.3d 8 6 ,
94 (1st Cir. 1996) (citing Celotex, 477 U.S. at 323; Anderson,
477 U.S. at 2 4 9 ) . While courts must exercise restraint in
-10- granting summary judgment in cases “where elusive concepts such
as motive or intent are at issue, this standard compels summary
judgment if the non-moving party rests merely upon conclusory
allegations, improbable inferences, and unsupported speculation.”
Straughn v . Delta Air Lines, Inc., 250 F.3d 2 3 , 33 (1st Cir.
2001) (quotation omitted, emphasis in original). I apply this
standard in resolving the defendant’s motion for summary
judgment.
III. DISCUSSION
A. The Title VII Claims6
Dubuche alleges that Emery violated Title VII by: (1)
refusing to promote him because he is black; (2) maintaining a
hostile work environment; and (3) retaliating against him because
he complained about the alleged racial discrimination. Emery
challenges the sufficiency of plaintiff’s Title VII claims. I
review each claim in turn.
6 Although Dubuche’s claims are brought under both 42 U.S.C. § 1981 and Title V I I , the legal standards that govern both claims are identical. See Conward v . Cambridge School Committee, 171 F.3d 1 2 , 18-19 (1st Cir. 1999). Therefore, I discuss them as if brought solely under Title V I I , and make no distinction between the two statutes. See id.
-11- 1. Failure to Promote
Dubuche alleges that Emery repeatedly refused to promote him
because he is black. See 42 U.S.C. § 2000e-2(a)(1) (making it
unlawful to “discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s . . . race”). Specifically, he
alleges that he was denied promotions to ATAG operator and
seasonal quality assurance associate positions.7 Emery responds
by claiming that it took these actions for legitimate,
nondiscriminatory reasons and that Dubuche offers insufficient
evidence to support his assertions that its actions were
7 Dubuche also claims he was denied a promotions to ramp clerk, CART operator and 10-key operator. However, it is undisputed that he was offered the ramp clerk position. Therefore, Dubuche cannot maintain a claim of discriminatory failure to promote based upon a position that was offered to him. Further, the records provided by Emery demonstrate that the job offer was rescinded because Dubuche failed to accept it in a timely fashion, not because he was black. Bruni Aff., Ex. 2 B . Dubuche offers no evidence in rebuttal. As for Dubuche’s claims that he was denied a promotion to CART operator and 10-Key operator, these jobs were not promotions. Dubuche Dep. 199-200. Further, Dubuche was assigned the duties of a CART and 10-Key operator on occasion, and was compensated for the work. See id. at 2 0 0 , 265, 320-21. Based upon the record, CART and 10-Key duties were not promotions. Therefore, I do not address these “positions” in my analysis.
-12- motivated by unlawful bias.
Because Dubuche’s claim that Emery failed to promote him is
based upon circumstantial evidence, I analyze it by applying the
burden-shifting framework established by the Supreme Court in
McDonnell Douglas Corp. v . Green, 411 U.S. 792 (1973); see also
Dominguez-Cruz v . Suttle Caribe, Inc., 202 F.3d 4 2 4 , 430 (1st
Cir. 2000).
Under the first step of the burden-shifting framework,
Dubuche must establish a prima facie case of discriminatory
failure to promote by proving by a preponderance of the evidence
that: (1) he is a member of a protected class; (2) he applied
for, and was denied, a promotion for which he was qualified; and
(3) after the denial, Emery filled the position with someone with
comparable qualifications.8 See Reeves v . Sanderson Plumbing
Products, Inc., 530 U.S. 133, 142 (2000); McDonnell Douglas, 411
U.S. at 802; Petitti v . New England Tel. & Tel. Co., 909 F.2d 2 8 ,
32 (1st Cir. 1990). Dubuche’s burden at this preliminary step is
8 The precise requirements of a plaintiff’s prima facie case will differ depending on the type of discrimination alleged and the specific employment practice at issue. See McDonnell Douglas, 411 U.S. at 802 n.13. I have tailored my description of the prima facie case to fit the contours of Dubuche’s failure to promote claim.
-13- “not onerous.” Texas Dept. of Community Affairs v . Burdine, 450
U.S. 2 4 8 , 253 (1981); see Fernandes v . Costa Bros. Masonry, Inc.,
199 F.3d 5 7 2 , 584 n.4 (1st Cir. 1999) (describing the nature of
proof required to establish a prima facie case as “de minimis”).
If Dubuche succeeds in making his prima facie case, he creates a
rebuttable presumption that Emery acted in a discriminatory
manner. See S t . Mary’s Honor Center. v . Hicks, 509 U.S. 5 0 2 , 506
(1993); Burdine, 450 U.S. at 254.
Construing the facts in the light most favorable to Dubuche,
I conclude that he has established a prima facie case of
discriminatory failure to promote. He is black and, therefore, a
member of a class protected by Title VII. There is evidence in
the record from which a reasonable jury could conclude that Emery
failed to promote him, that he was qualified for the positions
for which he applied, and that the positions were given to other
individuals with comparable qualifications. See Dubuche Dep.,
Ex. 1 ; Ex. 11 (Bates stamp D070-072). Given that Dubuche’s
burden is minimal at this initial stage, I find that he has
established a prima facie case.
Once the plaintiff has set forth a prima facie case, the
burden shifts to the defendant, who may rebut the presumption of
-14- discrimination by articulating a legitimate, nondiscriminatory
reason for its actions. See Hicks, 509 U.S. at 506-07; Burdine,
450 U.S. at 253-54. The defendant’s burden is solely a matter of
production; the burden of persuasion remains at all times with
the plaintiff. See Hicks, 509 U.S. at 508; Burdine, 450 U.S. at
257-58, 260. Emery has articulated a nondiscriminatory reason
for not promoting Dubuche and has produced admissible evidence in
support of its position. Emery asserts that it chose other
individuals over Dubuche because they were better qualified and
better suited for the job. See Bruni Aff., Exs. 2A, 2 B , 2 C .
Because both Dubuche and Emery have met their burdens at
steps one and two of the McDonnell Douglas framework, the
presumption of discrimination drops away, and I turn to the
ultimate issue: whether Dubuche has presented sufficient
evidence to prove that Emery intentionally refused to promote him
because of his race. See Reeves, 530 U.S. at 153 (“The ultimate
question in every employment discrimination case involving a
claim of disparate treatment is whether the plaintiff was the
victim of intentional discrimination.”); Straughn v . Delta
Airlines, Inc., 250 F.3d 2 3 , 34 (1st Cir. 2001). There is “no
mechanical formula” for determining whether a plaintiff’s
-15- evidence is sufficient to prove discrimination, Feliciano De La
Cruz v . El Conquistador Resort, 218 F.3d 1 , 6 (1st Cir. 2000);
however, the plaintiff must “present sufficient evidence to show
both that the employer’s articulated reason [for the failure to
promote was] a pretext and that the true reason [was]
discriminatory.” Straughn, 250 F.3d at 34 (quotations omitted)
(emphasis in original).
A “plaintiff’s prima facie case, combined with sufficient
evidence to find that the employer’s asserted justification is
false, may permit [, but does not compel,] the trier of fact to
conclude that the employer unlawfully discriminated.” Reeves,
530 U.S. at 148. Whether such a showing is sufficient to prove
discrimination will depend upon the circumstances of the case,
including “the strength of the plaintiff’s prima facie case,
[and] the probative value of the proof that the employer’s
explanation is false.” Id. Of course, a plaintiff may choose to
offer additional evidence of discriminatory intent in order to
buttress his claim and satisfy his burden of proof. See
Feliciano De La Cruz, 218 F.3d at 1 0 .
Regardless of the type or quantum of proof offered by the
plaintiff, a court, in evaluating a motion for summary judgment,
-16- should consider all relevant evidence of pretext and
discrimination in the aggregate. See Dominguez-Cruz, 202 F.3d at
431; Fernandes, 199 F.3d at 581. In other words, the appropriate
inquiry is whether, based on the totality of the evidence, a
reasonable jury could infer that the defendant’s proffered
explanation was pretextual and that the defendant was actually
motivated by discriminatory animus. See Feliciano De La Cruz,
218 F.3d at 6-7; Dominguez-Cruz, 202 F.3d at 431. The First
Circuit has cautioned that courts making this inquiry into an
employer’s motivation should be especially reluctant to grant
summary judgment in the employer’s favor. See, e.g., Hodgens v .
General Dynamics Corp., 144 F.3d 1 5 1 , 167 (1st Cir. 1998).
Applying these legal principles, I conclude that Dubuche has
failed to carry his burden of proffering competent evidence that,
together with all reasonable inferences which may be drawn in his
favor, raises a genuine issue of fact as to whether Emery’s
refusal to promote him was motivated by discrimination.
Straughn, 250 F.3d at 3 4 . In regard to the ATAG operator
position, Emery’s contemporaneously generated records indicate
that Dubuche was not selected due to his lack of “reliability,”
which was a key criteria listed for the ATAG position. See Bruni
-17- Aff. ¶15, Ex. 2 C . This is wholly consistent with Dubuche’s
admission that he was often late to work. Further, any
allegation that Emery refused to promote Dubuche because he was
black is seriously undermined by the fact that Emery promoted
black employees for both ATAG operator openings. See id. Aside
from Dubuche’s belief that he was better qualified for the job,
he presents no relevant evidence that Emery’s reasons for
denying him promotions were a pretext for discrimination.
With respect to the seasonal quality assurance position, the
candidates Emery selected had significant accounting, auditing,
or quality assurance backgrounds, which Dubuche lacked. See
Bruni Aff., Ex. 2A; Dubuche Dep., Ex. 1 . Again, Emery’s
contemporaneously-generated records indicate the nondiscrimina-
tory reasons for its selections, including the specific
qualifications and credentials of each candidate chosen and why
they were the best for the job. See Bruni Aff., Ex. 2A.
In sum, Dubuche presents no evidence from which a reasonable
fact finder could conclude that those involved in selecting the
successful applicants for the ATAG operator and seasonal quality
assurance positions believed that he was the best qualified
applicant but selected another applicant instead. Dubuche has
-18- failed to raise a genuine factual dispute as to whether Emery’s
articulated reasons for failing to promote him to the ATAG
operator or seasonal quality assurance positions were a pretext
for unlawful discrimination. Accordingly, I grant Emery’s motion
for summary judgment with regard to this claim.
2. Hostile Work Environment
Title VII prohibits discrimination caused by a racially
hostile work environment. See Danco, Inc. v . Wal-Mart Stores,
Inc., 178 F.3d 8 , 13 (1st Cir. 1999). In order to prevail on
such a claim, the plaintiff must “establish that the harassment
was so ‘severe or pervasive’ as to alter the terms of [the
plaintiff’s] employment, creating a work environment that was
both objectively hostile and perceived as hostile by [the
plaintiff].” Marrero v . Goya of Puerto Rico, Inc., N o . 01-1984,
2002, WL 1962144, at *4 (1st Cir. Aug. 2 8 , 2002) (quoting
Faragher v . Boca Raton, 524 U.S. 775, 786 (1998). This is not a
precise test, and “whether an environment is ‘hostile’ or
‘abusive’ can be determined only by looking at all the
circumstances,” including: “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it
-19- unreasonably interferes with an employee’s work performance.”
Gorski v . New Hampshire Dept. of Corrections, 290 F.3d 466, 472
(1st. Cir. 2002) (quotations omitted). Generally, a hostile work
environment occurs when “there are a series of events which mount
over time to create such a poisonous atmosphere as to violate the
law.” O’Rourke v . City of Providence, 235 F.3d 713, 727 (1st
Cir. 2001). However, “simple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of
employment.” Faragher, 524 U.S. at 788 (quotations omitted);
accord Clark County School Dist. v . Breeden, 532 U.S. 2 6 8 , 271
(2001) (per curiam). It is against this legal backdrop that I
review Dubuche’s hostile work environment claim.
Dubuche contends that the following events created a
racially hostile work environment: (1) the comment overheard on
Teebagy’s hand-radio stating “could you send two black guys to
the ball dock”; (2) Larrea’s comment that Dubuche and a white co-
worker reminded her of the men who shoveled coal in the engine
room of the Titanic; and (3) Sanders’ comment that Emery’s
tuition reimbursement policy was only for those who went to
school. See Plf’s. Mem. Supp. O b j . to Mot. for Summ. J., p.21.
-20- Dubuche’s own deposition testimony debunks the notion that
these incidents give rise to a poisonous and denigrating
atmosphere charged with racial hostility or abuse. First,
Dubuche was only “somewhat” offended at the comment he overheard
on Teebagy’s radio. Dubuche Dep. 206. Regardless, he still felt
“comfortable” working at Emery. Dubuche Dep. 208. As for
Sanders’ comment that Emery’s tuition policy only applies to
“people that go to school,” Dubuche Dep. 208-09, it lacked a
focused attack against Dubuche’s racial background. Further,
when asked whether Dubuche thought Sanders was joking, he
responded that he was uncertain “how [Sanders] intended [the
remark.” Dubuche Dep. 209. Lastly, Larrea’s comment regarding
the Titanic also lacked a focused attack against Dubuche’s racial
background. Indeed, the comment was directed at Dubuche and a
white co-worker. When asked whether Larrea meant any ill-will by
her comment, Dubuche stated that “[w]ell, she only said it
because I was sweating and . . . when you look at the movie
[Titanic] . . . that’s pretty much [how] those people [looked].”
Dubuche Dep. 217. Larrea contends that her comment was not meant
to compare Dubuche to a slave, but rather to compare the “never
ending work” of Dubuche and his co-worker with the workers of the
-21- Titanic. Bruni Aff., Ex. 3B (Larrea’s statement to Human Rights
Commission).
I conclude that Dubuche has failed to establish that the
alleged harassment was so “severe or pervasive” as to create a
“work environment that was both objectively hostile and perceived
as hostile by [Dubuche].” Marrero, 2002 WL 1962144, at * 4 .
Aside from the comment overheard on Teebagy’s radio, the comments
were isolated, offhand remarks that lacked racial overtones.
Although I do not condone the type of comment overheard on
Teebagy’s radio, this lone, stray remark is not enough to
establish a hostile work environment claim. See Faragher, 524
U.S. at 788. Therefore, Emery is entitled to summary judgment.
3. Retaliation
Emery next argues that Dubuche fails to establish a prima
facie case of retaliation. See 42 U.S.C. § 2000e-3(a) (making it
unlawful for an employer to discriminate against an employee who
has opposed any unlawful employment practice, “or because [the
employee] has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing”
regarding discrimination). In the alternative, Emery argues that
the employment actions it took were not retaliatory.
-22- Once again, I use the burden-shifting framework established
by the Supreme Court to analyze Dubuche’s claim. See McDonnell
Douglas, 411 U.S. 792. 9 To establish a prima facie case of
retaliation, Dubuche must show by a preponderance of the evidence
that: (1) he engaged in conduct protected by Title VII; (2) he
suffered an adverse employment action; and (3) the adverse action
is causally connected to the protected activity. White v . New
Hampshire Dept. of Corrections, 221 F.3d 2 5 4 , 262 (1st Cir.
2000). If Dubuche establishes his prima facie case, the burden
of production shifts to Emery, who must respond by articulating a
legitimate, nondiscriminatory reason for the adverse employment
action. See King v . Town of Hanover, 116 F.3d 965, 968 (1st Cir.
1997). If Emery meets its burden of production, the presumption
of retaliation falls away and Dubuche must prove that Emery’s
explanation is actually a pretext concealing a retaliatory
motivation. See id.
I conclude that Dubuche has established a prima facie case
of retaliation. Because reporting or complaining about racial
9 I reject Dubuche’s invitation to analyze this claim under a mixed-motive framework. The evidence presented by Dubuche does not compel such an analysis. See Fernandes, 199 F.3d at 581-83; Kirk v . Hitchcock Clinic, 261 F.3d 7 5 , 78 (1st Cir. 2001).
-23- discrimination is a protected activity, see 42 U.S.C. § 2000e-
3 ( a ) , Dubuche’s verbal and written complaints most certainly
qualify as protected activity. See White, 221 F.3d at 262;
Hoeppner v . Crotched Mountain Rehab. Ctr., Inc., 31 F.3d 9, 14
(1st Cir. 1994). After engaging in this protected activity,
Dubuche was warned about his attendance, suspended without pay,
and ultimately discharged. These changes in the condition of his
employment constitute adverse employment actions. See White, 221
F.3d at 262. Therefore, there is no dispute that Dubuche has
established the first two elements of his retaliation claim.
In order to complete his prima facie case, Dubuche must
“point to evidence in the record that would permit a rational
fact finder to conclude that the employment action was
retaliatory.” King, 116 F.3d at 968; Hoeppner, 31 F.3d at 1 4 .
“One way of showing causation is by establishing that the
employer’s knowledge of the protected activity was close in time
to the employer’s adverse action.” Wyatt v . City of Boston, 35
F.3d 1 3 , 16 (1st Cir. 1994). Although there is no bright line
rule defining “temporal proximity,” the Supreme Court has stated
that the employer’s adverse action must be “very close” in time
to the protected activity. Breeden, 532 U.S. at 271. I may also
-24- consider such factors as the sequence of events leading to the
adverse action, and whether the employer departed from normal
procedures. Hodgens, 144 F.3d at 168-69. “In addition, doubts
about the fairness of an employer’s decision . . . while not
dispositive, may be probative of whether the employer’s reasons
are pretexts for [retaliation].” Id. (quotations omitted).
Here, approximately two months after Dubuche’s November
complaint about Sanders’ alleged racial discrimination, Sanders
began issuing warnings to Dubuche. Further, when Dubuche brought
his complaints directly to Sanders in January 1999, Sanders
contemporaneously attempted to fire Dubuche and remove him from
the building. See Dubuche Dep., Ex. 12 (Bates stamp D073);
Dubuche Aff. ¶ 3 3 ; Kendrick Aff. ¶ 1 8 ; Bruni Aff., Ex. 1 . Bruni
responded to the January confrontation between Dubuche and
Sanders by suspending Dubuche without pay. Dubuche also contends
that Emery engaged in “a campaign of stalking and harassment,”
which culminated in Dubuche’s termination, in response to
Dubuche’s complaints. Drawing all inferences in Dubuche’s favor,
and in light of the relatively low threshold showing necessary to
establish a prima facie case, I conclude that this is enough to
satisfy Dubuche’s burden of establishing a causal connection
-25- between the employment action and the protected activity.
To rebut the inference of discrimination created by
Dubuche’s prima facie case, Emery must articulate a legitimate,
nondiscriminatory reason for the adverse employment action. See
King, 116 F.3d 965, 968. Emery asserts that Dubuche’s chronic
tardiness and disregard for its attendance and punctuality policy
was the reason for the warnings issued to Dubuche. Further, it
denies that it engaged in a campaign of stalking and harassment
and that its decision to terminate Dubuche was based solely upon
his falsification of a payroll document. While the truth of
these justifications is disputed, Emery has articulated
legitimate, nondiscriminatory reasons for its actions.
As the presumption of retaliation has fallen away, Dubuche
must prove that Emery’s explanation is actually a pretext
concerning a retaliatory motivation. See id. In evaluating
Dubuche’s proffer, I examine all the circumstances, including,
but not limited t o : temporal proximity between the adverse
action and the protected activity; the sequence of events; the
employer’s departure from normal procedures; and the fairness of
the employer’s decision. Hodgens, 144 F.3d at 169; King, 116
F.3d at 968; Wyatt, 35 F.3d at 1 6 . Whatever the sources of his
-26- proof, Dubuche, in order to survive summary judgment, “must
present evidence from which a reasonable jury could infer that
the [Emery] retaliated against him for engaging in [protected]
activity.” Mesnick v . General Elec. Co., 950 F.2d 816, 828 (1st
Cir. 1991).
Dubuche, through his deposition testimony and Kendrick’s
affidavit, presents evidence that he first complained of racial
discrimination to Bruni and other members of Emery’s upper
management in November 1998.10 See Dubuche Dep. 196-97, 2 9 7 ,
310; Dubuche Aff. ¶ 3 2 ; Kendrick Aff. ¶ 6. Prior to November,
although Dubuche was late for work over 50 times in 1998, he was
never issued a written warning.11 See Dubuche Aff. ¶ 4 . Two
months after his November complaint, he began receiving written
warnings from Sanders for tardiness. The temporal proximity
10 Bruni contends that Dubuche never spoke to him about discrimination in November. I need not determine whether Dubuche or Bruni is telling the truth, however, because such credibility determinations are for the fact finder at trial, not for me at summary judgement. Simas v . First Citizens’ Federal Credit Union, 170 F.3d 3 7 , 49 (1st Cir. 1999). 11 I note that Emery contends that Sanders spoke with Dubuche about his tardiness in June of 1998. See Sanders Aff. ¶ 8 , Ex. 3 . Dubuche disputes this contention. Again, such a credibility determination is for the fact finder at trial. See Simas, 170 F.3d at 4 9 .
-27- between Dubuche’s November complaint and the tardiness warnings
is circumstantial evidence of retaliation. See Wyatt, 35 F.3d at
16.
Dubuche also presents evidence that an unwritten policy
existed at Emery that employees would not be reprimanded for
tardiness, so long as they worked hard and put in overtime.
Dubuche Aff. ¶ 1 5 ; Dubuche Dep. 100; Kendrick Aff. ¶ 5 . Emery
does not dispute that Dubuche was a hard worker and frequently
put in overtime. Nonetheless, it departed from its alleged
unwritten policy and began reprimanding Dubuche for his tardiness
two months after Dubuche levied his November complaint. Such a
departure from Emery’s normal policies and procedures tends to
support an inference of a retailatory motive. See Hodgens, 144
F.3d at 169.
When Dubuche confronted Sanders on January 2 1 , 1999 and
accused him of racial discrimination, Sanders attempted to fire
him and told him to leave the building. Bruni’s own investi-
gation into the incident states that Sanders “told [Dubuche] to
get out of the building.” Bruni Aff., Ex.1. In response to the
confrontation between Sanders and Dubuche, Bruni told Dubuche
that he would not investigate Dubuche’s complaints of racial
-28- discrimination until he received them in writing. See Bruni
Aff., Ex. 1 . There is no policy requiring an employee to submit
a complaint in writing. See Dubuche Dep., Ex. 7 (Employee
Handbook, Bates stamp D468). Indeed, under the three options
available to an employee alleging discrimination, none indicate
that the employee must submit a written complaint; rather, each
option highlights Emery’s goal of assisting the employee to
resolve the complaint. See id.
Bruni’s memorandum regarding his investigation, viewed in a
light most favorable to Dubuche, indicates that Dubuche was
suspended without pay until he submitted a written complaint.
See Bruni Aff., Ex. 1 . Such action contradicts Emery’s written
procedures and policies of assisting the employee in resolving
complaints of discrimination. See Dubuche Dep., Ex. 7 (Employee
Handbook, Bates stamp D468). After he filed his internal
complaint, Dubuche contends that Bruni told him that he would be
“watching [him]” and would “get reports on [him].” Dubuche Dep.
285.
Emery’s nondiscriminatory reason for terminating Dubuche for
falsifying a payroll document is suspect when viewed in a light
most favorable to Dubuche. First, Dubuche presents evidence that
-29- if the time system failed to record an employee’s hours, a
manager would ask the employee to provide his or her time. The
manager would then manually enter the time into the system. See
Dubuche Dep. 1 7 8 , 179; Kendrick Aff. ¶ 2 1 . Employees were not
required or asked to sign a time card or payroll document
attesting to their hours. See id. Curiously, Emery proffers
nothing to dispute this evidence. Despite this alleged informal
policy, Bruni required Dubuche to sign a payroll document
attesting to the hours he worked on March 2 5 , 1999. Once again,
such a departure from normal procedure lends credence to
Dubuche’s claim of retaliation. See Hodgens, 144 F.3d at 169.
Second, i f , as Emery contends, Dubuche was on final warning for
attendance and punctuality, there was no need for Emery to
conceal the security log. Indeed, Emery could have simply shown
the log to Dubuche and terminated him for failing to meet the
requirements of the final warning (60 days of perfect
attendance). Instead, Emery officials asked that Dubuche sign a
time card and then fired him for falsifying i t . One could infer
that Dubuche was not on final warning and that Emery simply
created a pretextual reason to terminate Dubuche.
After considering the above facts and circumstances, I
-30- conclude that Dubuche has provided evidence from which a
reasonable fact finder could conclude that Emery’s reasons for
issuing warnings to Dubuche, monitoring him, and ultimately
firing him were retaliatory. I therefore deny Emery’s motion for
summary judgment as it pertains to Dubuche’s claim of
retaliation. See 42 U.S.C. § 2000e-3(a).
V. CONCLUSION
For the foregoing reasons, I grant Emery’s motion for
summary judgment (Doc. N o . 13) as it pertains to Dubuche’s
discriminatory failure to promote and hostile work environment
claims, and deny the motion as it pertains to Dubuche’s claim of
retaliation under 42 U.S.C. § 2000e-3(a). I also deny Emery’s
motions to strike Dubuche’s affidavits (Doc. Nos. 1 7 , 1 8 , 1 9 ) .
SO ORDERED.
Paul Barbadoro Chief Judge
October 9 , 2002
-31- cc: David Garfunkel, Esq. Jaclyn Kugell, Esq. Francis Murphy, Esq.
-32-