UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
George Wilson
v. Civil No. 13-cv-129-LM Opinion No. 2014 DNH 125 Port City Air, Inc.
O R D E R
George Wilson is African American. For approximately four
years, until his discharge in 2012, he worked for Port City Air,
Inc. (“Port City”). Wilson has sued Port City, asserting claims
for: (1) racial discrimination and retaliation, under New
Hampshire’s Law Against Discrimination, N.H. Rev. Stat. Ann.
(“RSA”) ch. 354-A (Counts I-V); (2) wrongful discharge (Count
VI); and (3) racial discrimination and retaliation, under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(Counts VII-XI). Before the court are: (1) Port City’s motion
to strike certain evidence in the summary-judgment record; and
(2) Port City’s motion for summary judgment. Wilson objects to
both motions. The court heard oral argument on May 9, 2014.
For the following reasons, defendant’s motions are both denied.
Motion to Strike
In the context of summary judgment, motions to strike
typically involve both an unnecessary litigation expense and a waste of judicial resources. Either a memorandum in support of
an objection to summary judgment or a reply brief is an
appropriate and effective vehicle for challenging the
admissibility of evidence on which one side or the other relies
at summary judgment.
Port City’s motion to strike, which challenges only the
admissibility of certain evidence, is denied for a variety of
reasons: (1) some of its analysis is erroneous; (2) much of the
evidence it challenges concerns facts that are not material, see
Daniels v. Agin, 736 F.3d 70, 78 (1st Cir. 2013) (citing SEC v.
Ficken, 546 F.3d 45, 51 (1st Cir. 2008)) (“A fact is material if
it could affect the outcome of the suit under governing law.”);
and (3) little of the challenged evidence actually figures into
the court’s resolution of the pending summary-judgment motion.
To the extent that Port City raises any valid concerns regarding
the admissibility of evidence, the court has taken those
concerns into account in the balance of this order. While the
motion to strike is denied, it is denied without prejudice to
challenging the admissibility of the evidence discussed therein
at trial.
Summary-Judgment Standard
“Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to
2 judgment as a matter of law.” Ponte v. Steelcase Inc., 741 F.3d
310, 319 (1st Cir. 2014) (quoting Cortés–Rivera v. Dept. of
Corr., 626 F.3d 21, 26 (1st Cir. 2010)); see also Fed. R. Civ.
P. 56(a). When ruling on a motion for summary judgment, the
court must “view[] the entire record ‘in the light most
hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party’s favor.’” Winslow v.
Aroostook Cty., 736 F.3d 23, 29 (1st Cir. 2013) (quoting Suarez
v. Pueblo Int’l, Inc., 229 F.3d 49, 53 (1st Cir. 2000)).
“The nonmovant may defeat a summary judgment motion by
demonstrating, through submissions of evidentiary quality, that
a trialworthy issue persists.” Sánchez-Rodríguez v. AT&T
Mobility P.R., Inc., 673 F.3d 1, 9 (1st Cir. 2012) (quoting
Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006)).
Thus, “the party seeking to avoid summary judgment must be able
to point to specific, competent evidence to support his [or her]
claim.” Sánchez-Rodríguez, 673 F.3d at 9 (quoting Soto-Ocasio
v. Fed. Ex. Corp., 150 F.3d 14, 18 (1st Cir. 1998)) (internal
quotation marks omitted).
Discussion
In the discussion that follows, the court takes Wilson’s
claims somewhat out of order and considers together the pairs of
federal and state claims that are based upon the same conduct
3 and rely upon the same legal theory, “[b]ecause the New
Hampshire Supreme Court relies on Title VII cases to analyze
claims under RSA 354-A,” Hubbard v. Tyco Integ. Cable Sys.,
Inc., ___ F. Supp. 2d ___, ___, 2013 WL 6234623, at *8 (D.N.H.
2013) (quoting Hudson v. Dr. Michael J. O’Connell’s Pain Care
Ctr., Inc., 822 F. Supp. 2d 84, 92 (D.N.H. 2011)) (other
citations omitted).
A. Counts I, II, VII & VIII: Hostile Work Environment
In Counts I and VII, Wilson claims that Port City is liable
to him, under state and federal law, for failing to take prompt
and appropriate action to remediate a racially hostile work
environment created by his co-workers. In Counts II and VIII,
Wilson claims that his supervisors also engaged in conduct that
created a hostile work environment based upon his race. In this
section, the court considers separately the claims based on the
conduct of co-workers and the claims based on the conduct of
superiors. But first, the court outlines the relevant law.
1. Relevant Law
“Title VII prohibits employers from discriminating against
individuals ‘because of [their] race, color, religion, sex, or
national origin . . . .’” Ramos-Echevarría v. Pichis, Inc., 659
F.3d 182, 186 n.5 (1st Cir. 2011) (quoting 42 U.S.C. § 2000e-
2(a)(1)). “Requiring a person ‘to work in a discriminatorily
4 hostile or abusive environment’ violates Title VII.” Gerald v.
Univ. of P.R., 707 F.3d 7, 17 (1st Cir. 2013) (quoting Valentín–
Almeyda v. Mun’y of Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006));
citing Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)). More
specifically, Title VII is violated “[w]hen the workplace is
permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions
of the victim’s employment and create an abusive working
environment.” Torres–Negrón v. Merck & Co., 488 F.3d 34, 39
(1st Cir. 2007) (quoting Harris, 510 U.S. at 21).
Turning to the elements of his claim, for Wilson to
prevail, he must show:
(1) that [he] is a member of a protected class; (2) that [he] was subjected to unwelcome . . . harassment; (3) that the harassment was based upon [race]; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiff’s employment and create an abusive work environment; (5) that [racially] objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and (6) that some basis for employer liability has been established.
Ponte, 741 F.3d at 320 (quoting Forrest v. Brinker Int’l Payroll
Co., 511 F.3d 225, 228 (1st Cir. 2007); citing Crowley v. L.L.
Bean, Inc., 303 F.3d 387, 395 (1st Cir. 2002)). Finally,
“because the inquiry into the existence of a hostile work
environment is fact specific, ‘the determination is often
5 reserved for a fact finder.’” Vega-Colón v. Wyeth Pharms., 625
F.3d 22, 32 (1st Cir. 2010) (quoting Pomales v. Celulares
Telefónica, Inc., 447 F.3d 79, 83 (1st Cir. 2006)). This is
most certainly a case in which the determination of whether
Wilson was subjected to a hostile work environment belongs in
the hands of a fact finder.
2. Conduct by Co-Workers
Port City does not dispute Wilson’s ability to prove the
first three elements of his claims, but argues that it is
entitled to summary judgment on Counts I and VII because Wilson
cannot prove the fourth, fifth, or sixth elements. That is,
Port City argues that Wilson cannot show that: (1) the
harassment he suffered was severe or pervasive; (2) the
harassment was objectively and subjectively offensive; or (3)
there is any basis for holding it liable for the conduct of
Wilson’s co-workers. The court does not agree.
With regard to the fourth and fifth elements of his claim,
Wilson has produced evidence that two nooses were placed in his
workspace by co-workers; that the perpetrators of the noose
incident were heard laughing about it; that one of the
perpetrators of the noose incident, Adam Clark, subsequently
told Wilson that if he continued talking to him in a particular
way, he i.e., Clark, would get a noose; and that Clark told him
6 the “every nigger deserves a noose.” Wilson has also produced
evidence that for a period of more than four months, on a daily
basis, and all throughout the Port City facility, Clark used the
terms “son,” “boy,” “coon,” and “nigger,” to describe him,
either to his face or behind his back. And, there is evidence
that Clark did not desist even after Wilson asked him to stop
using racially offensive language. Finally, there is evidence
that Wilson had been told about a conversation in which four co-
workers, including the two perpetrators of the noose incident,
said they wished Wilson were dead and that they wanted to “kill
a black bastard,” meaning Wilson. That is more than enough to
create a jury question on the fourth and fifth elements of a
hostile-work-environment claim.
As to the sixth element, employer liability for the conduct
of a plaintiff’s co-workers, a reasonable jury could find that
due to the amount racial harassment in Wilson’s workplace, and
its openness, Port City should have known about it. See Debord
v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642, 652 (10th Cir.
2013) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 675)
(10th Cir. 1998)). That is enough to create a triable issue of
fact on the sixth element of Wilson’s claim.
7 3. Conduct by Supervisors
With regard to Counts II and VIII, which are based upon
conduct by Wilson’s supervisors, Port City’s memorandum of law
does not even address the elements of the claim. Rather, Port
City argues that Wilson’s complaint identified no acts of
harassment by supervisors. That, of course, is flatly
incorrect; paragraphs 65 and 64 specifically allege racially
charged conduct by Wilson’s direct supervisor, John Andrews.
Moreover, Wilson has produced evidence of daily use of racially
offensive language directed toward him by both Andrews and by
Wilson’s previous supervisor, Robert Dunnell. That language
included the terms “boy,” “son,” “cotton picker,” and “nigger.”
As with Clark, Wilson has produced evidence that Dunnell and
Andrews both continued to direct racially offensive language
toward him even after he asked them to stop. Accordingly,
Wilson has created triable issues as to Counts II and VIII.
B. Counts III, IV, IX & X: Retaliation
In Counts III and IX, Wilson claims that Port City demoted
him to the position of Lineman, in March of 2012, in retaliation
for coming forward with an internal complaint about racial
discrimination in early January of 2012. In Counts IV and X, he
claims that Port City suspended, and ultimately discharged him,
in retaliation for his filing charges with the New Hampshire
8 Commission for Human Rights (“HRC”) and the federal Equal
Employment Opportunity Commission (“EEOC”). Port City argues
that it is entitled to summary judgment because Wilson cannot
establish a prima facie case of retaliation for either of his
two pairs of claims and because he cannot establish that the
reasons Port City gave for demoting, suspending, and discharging
him were pretexts for retaliation. Again, the court does not
agree. In this section, the court begins with the relevant law
and then turns to the specific acts of retaliation that underlie
Wilson’s claims.
Under Title VII, it is unlawful for an employer to
“retaliat[e] against an . . . employee because [he] has opposed
any practice made an unlawful employment practice by this
subchapter, or because [he] has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” Garayalde-Rijos
v. Mun’y of Carolina, 747 F.3d 15, 24 (1st Cir. 2014) (quoting
42 U.S.C. § 2000e-3(a)).
Where, as here, a retaliation claim is based upon
circumstantial evidence, courts employ “the McDonnell Douglas
burden-shifting framework.” Ponte, 741 F.3d at 321 (citing
9 Gerald, 707 F.3d at 21; McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-05 (1973)). Under that framework,
a plaintiff must first establish a prima facie case of retaliation by showing that (1) [he] engaged in protected conduct, (2) [he] was subject to an adverse employment action, and (3) a causal connection existed between the first and second elements. Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir. 2005). The burden then shifts to the defendant to “articulate a legitimate, non-discriminatory reason for its challenged actions.” Provencher v. CVS Pharmacy, Div. of Melville Corp., 145 F.3d 5, 10 (1st Cir. 1998) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55 (1981)). Finally, “[i]f the defendant does so, the ultimate burden falls on the plaintiff to show that the proffered legitimate reason is in fact a pretext and that the job action was the result of the defendant’s retaliatory animus.” Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996).
Colón v. Tracey, 717 F.3d 43, 49 (1st Cir. 2013) (parallel
With regard to the third stage of the McDonnell Douglas
framework, i.e., pretext, the court of appeals for this circuit
has explained:
“[T]here is no mechanical formula for finding pretext.” Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 39 (1st Cir. 2003) (internal quotation marks omitted). Instead, “[i]t is the type of inquiry where ‘everything depends on the individual facts.’” Id. at 40 (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 57 (1st Cir. 1999)). The inquiry focuses on whether the employer truly believed its stated reason for taking action adverse to the employee. See Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 7 (1st Cir. 2000). The plaintiff bears “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against
10 the plaintiff.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (alteration in original) (internal quotation mark omitted).
Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 116 (1st Cir.
2013) (parallel citations omitted). “[W]here a plaintiff in a
discrimination case makes out a prima facie case and the issue
becomes whether the employer’s stated nondiscriminatory reason
is a pretext for discrimination, courts must be ‘particularly
cautious’ about granting the employer’s motion for summary
judgment.” Billings v. Town of Grafton, 515 F.3d 39, 56 (1st
Cir. 2008) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d
151, 167 (1st Cir. 1998); citing Stepanischen v. Merch. Despatch
Transp. Corp., 722 F.2d 922, 928 (1st Cir. 1983)).
2. Demotion (Counts III & IX)
Wilson has carried his burden of establishing a prima facie
case. Port City has articulated a legitimate non-discriminatory
reason for demoting him, i.e., absence from work without giving
proper notification or clocking out. Wilson, however, has
produced sufficient evidence on pretext to go to a jury.
Specifically, he has produced evidence that his demotion closely
followed his reporting of the noose incident to Port City
management; that he had made, and been allowed to correct,
nearly 20 previous time-clock errors without discipline; that no
other Port City employee had ever been demoted for infractions
11 similar to the one for which he was demoted; and that Port City
management deeply regretted, and tried to resist, discharging
Adam Clark after Wilson reported the noose incident to
management. From that evidence, a reasonable jury could
conclude that the reason Port City gave Wilson for demoting him
was a sham, intended to hide its desire to retaliate against him
for reporting the noose incident and forcing it to take action
against Clark that it did not want to take.
3. Suspension and Discharge (Counts IV & X)
Wilson has established his prima facie case, and Port City
has articulated legitimate non-discriminatory reasons for
suspending and discharging him, including his absence from Port
City during work hours and his inaccurate recording of work
time, problems with anger and bullying, and his lack of a
security clearance necessary to service some international
flights. But, again, Wilson has created a jury question
regarding whether those reasons were pretextual. Among other
things, he has produced evidence that most of the reasons Port
City gave concerned issues it had known about, and tolerated,
for years before it decided to impose discipline for them. And,
it is undisputed that those long-tolerated issues became grounds
for discipline mere days after Wilson filed complaints with HRC
and the EEOC. In addition, the Port City directive making the
12 security clearance Wilson lacked a condition of employment was
issued while he was under suspension and, consequently, unable
to obtain his clearance. There is also evidence that Wilson had
spoken openly of the possibility that he might sue Port City and
that Port City’s President, Robert Jesurum, was displeased with
Wilson for suggesting that he might do so. Because a reasonable
jury could find that the reasons Port City gave Wilson for
suspending and discharging him were pretexts for retaliating
against him for bringing formal charges of discrimination, Port
City is not entitled to judgment as a matter of law on Counts IV
and X.
C. Count VI: Wrongful Discharge
In Count VI, Wilson claims that Port City is liable to him
for wrongful discharge because it terminated his employment in
retaliation for his: (1) reporting racial discrimination in his
workplace; and/or (2) filing charges of discrimination with the
HRC and the EEOC. Because Wilson’s two claims that he was
discharged in retaliation for making formal charges of
discrimination survive summary judgment, so too does his
wrongful discharge claim. Whether or not all three claims are
ultimately submitted to the jury is a matter to be resolved at
trial. What matters for the moment is that as to Count VI, Port
City is not entitled to judgment as a matter of law.
13 D. Counts V & XI: Discrimination
At oral argument, Port City agreed to give up Counts V and
XI in the event that his discrimination and retaliation claims
go to trial. Those claims have survived summary judgment.
Accordingly, the claims stated in Counts V and XI are dismissed.
Conclusion
For the reasons detailed above: (1) Port City’s motion to
strike, document no. 40, is denied, without prejudice to
challenging the admissibility of evidence at trial; and (2) Port
City’s motion for summary judgment, document no. 34, is denied.
This case now consists of the hostile-work-environment claims
stated in Counts I, II, VII, and VIII, the retaliation claims
stated in Counts III, IV, IX, and X, and the wrongful-discharge
claim stated in Count VI.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
June 3, 2014
cc: Matthew T. Broadhead, Esq. Jacob John Brian Marvelley, Esq. Paul McEachern, Esq.