Sewell v. Hertrich Investments, Ltd.

825 F. Supp. 2d 503, 2011 U.S. Dist. LEXIS 130275, 2011 WL 5508994
CourtDistrict Court, D. Delaware
DecidedNovember 10, 2011
DocketCiv. No. 09-988-SLR
StatusPublished

This text of 825 F. Supp. 2d 503 (Sewell v. Hertrich Investments, Ltd.) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sewell v. Hertrich Investments, Ltd., 825 F. Supp. 2d 503, 2011 U.S. Dist. LEXIS 130275, 2011 WL 5508994 (D. Del. 2011).

Opinion

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

On December 23, 2009, Alfred Sewell (“plaintiff’) filed an employment discrimination complaint against his former employer, Hertrich Investments, LTD (“defendant”). (D.I. 1) The amended complaint set forth three counts: (1) discrimination on the basis of race and [508]*508national origin in violation of Title VII, 42 U.S.C. § 2000e et seq. (“Title VII”); (2) discrimination on the basis of a hearing disability in violation of Title IV of the Americans With Disabilities Act, 42 U.S.C. 12112(a) (“ADA”); and (3) retaliation in violation of Title VII. (Id.) By stipulation of the parties, an amended complaint was filed on May 28, 2010. (D.I. 13) The amended complaint contained an additional count: discrimination based upon a hostile work environment in violation of 42 U.S.C. § 1891 (“§ 1891”). (Id.) Defendant filed a motion to dismiss the retaliation claim. (D.I. 5) That motion was granted. (D.I. 16) Presently before the court is defendant’s motion for summary judgment on the remaining three counts. (D.I. 53) The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons discussed below, the court grants in part and denies in part the pending motion.

II. BACKGROUND

Plaintiff is a fifty-five year-old Jamaican man who immigrated to the United States in the 1970s. (D.I. 56 at 3) Plaintiff suffers from a hearing disability and this disability requires him to wear hearing aides in both ears. (Id. at 24-25) Plaintiffs hearing loss began in the late 1970s or early 1980s, and plaintiff has been wearing hearing aides since the 1990s. (Id.)

Plaintiff settled in Delaware in 1994 (id. at 3) and was hired by defendant in November of 2007 (id. at 29). Defendant is a car dealership, and plaintiff was hired for the position of car detailer. (Id.) The parties disagree about who interviewed and ultimately hired plaintiff for the detailer position. According to defendant, plaintiff interviewed first with Jim Baaden, the administrative assistant to general manager Guy Winer (“Winer”) (id. at 30-32; 99) and then interviewed with Darryl Baldwin (“Baldwin”), the manager of the detail department (id. at 32; 99; 146). Defendant contends that plaintiff also interviewed with Winer, who, as the general manager, interviewed and approved all new hires, including plaintiff. (Id. at 100-01) Plaintiff denies being interviewed by Winer. (Id. at 32-33) The parties agree that at the time of his hire, plaintiffs Jamaican heritage and hearing disability were known to defendant. (D.I. 54 at 3; D.I. 59 at 3)

As an employee in the detail department, plaintiff reported directly to Baldwin, an African-American male. (D.I. 56 at 34) Baldwin oversaw four other detailers besides plaintiff; these other detailers were Wayne Morris (African-American male), Greg Mason (African-American male), Brian Nichols (Caucasian male) and Antonio Williams (African-American male). (Id. at 42; 103-06)

Plaintiff claims Baldwin began overtly harassing him about his nationality and hearing disability in April of 2008. (D.I. 60 at 30) According to plaintiff, when he would arrive in the mornings, Baldwin would come up behind him and try to see if he could hear him say “Alfred, Alfred, Alfred, you fucking Jamaican monkey.” (Id. at 31) While plaintiff acknowledges that this harassment did not occur every morning, plaintiff claims that it was a fairly regular occurrence. (Id.) Besides calling him a “Jamaican monkey,” plaintiff also alleges that Baldwin would call him “an asshole” and would tell him to “turn up [his] hearing aid.” (Id. at 31-32) Plaintiff also testified that Baldwin put him in a headlock during one altercation, and his hearing aid broke during this scuffle. (Id. at 34) Plaintiff testified that this harassment made him “feel uncomfortable.” (Id. at 31)

Despite the alleged regularity of the harassment and his discomfort, plaintiff [509]*509admits not reporting Baldwin’s harassing behavior to one of Baldwin’s superiors or anyone else in management. (D.I. 56 at 56-58) Plaintiff explains that he did not report the harassment because he was not sure anyone would believe his allegations and he was also afraid he would lose his job if he filed a report. (Id. at 52-59) He also testified that Baldwin threatened to have him fired if he said anything to management about the alleged harassment. (Id. at 57) Plaintiff did discuss the harassment with his fellow detailers and his ex-wife. (D.I. 56 at 52-59; D.I. 60 at 57-58)

Aside from Baldwin’s alleged harassment, plaintiff also claims that Winer harassed him on the basis of his nationality and hearing disability. According to plaintiff, he and some of his co-workers were tasked with helping Winer move some items around the dealership. During this time, plaintiff claims that Winer stated that “Jamaiea[n] people don’t like white people.” (D.I. 56 at 61) Winer also supposedly told plaintiff to “turn it up, turn it up,” in reference to his hearing aid. (Id. at 62) With respect to the latter comment, plaintiff thinks it was made during his first interaction with Winer and, while he believes the remark may have been a joke, he did not find it funny. (Id. at 65-67)

In either late May or early June, plaintiff was given a $l/hour raise by Winer. (Id. 39) The raise came in response to plaintiffs requests for a pay increase. (Id.) Shortly after receiving the raise, on June 17, 2008, plaintiff was terminated for allegedly stealing gasoline for personal use. The parties dispute the justification for and manner in which the termination occurred.

According to defendant, on June 16, 2008, one of defendant’s employees backed a vehicle into a customer’s car, causing damage to the customer’s vehicle. (Id. at 111-12) Because no one admitted to causing the damage, Winer accessed security camera footage to see if he could identify a culprit. (Id.) While reviewing the footage, Winer claims he observed plaintiff aid Wayne Morris (“Morris”) in his effort to steal gasoline from the dealership’s gasoline pump. Specifically, Winer claims to have seen plaintiff act as a lookout for Morris while Morris filled his personal vehicle with gasoline. (Id. at 112; 119) Win-er also testified that plaintiff filled up a gas canister at the dealership’s pump and eventually put this gasoline into his personal vehicle.1 (Id. at 125-26) Winer subsequently showed the footage to other managers, including Baldwin, Larry Reed-er and Eddie Reeder, who helped confirm that the gas was being pumped into Morris’s Ford Bronco. (Id. at 120; 127)

On June 17, 2008, Winer claims to have separately confronted both Morris and plaintiff with the video footage. He testified that both admitted to stealing gas, but only that one time. (Id. at 133-35) After reprimanding them both, he claims that he sent both employees back to work. (Id.)

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Bluebook (online)
825 F. Supp. 2d 503, 2011 U.S. Dist. LEXIS 130275, 2011 WL 5508994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sewell-v-hertrich-investments-ltd-ded-2011.