Bakhit et al v. Safety Markings, Inc. et al

Filing 166

RULING denying 124 Motion for Summary Judgment; denying 125 Motion for Summary Judgment; denying 126 Motion for Summary Judgment; denying 127 Motion for Summary Judgment; denying 128 Motion for Summary Judgment; denying 129 Motion f or Summary Judgment; denying 130 Motion for Summary Judgment; denying 131 Motion for Summary Judgment; denying 132 Motion for Summary Judgment; denying 133 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 7/1/2015. (Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
:
:
:
:
v.
:
:
SAFETY MARKING, INC., MARK KELLY, :
RAY VEZINA, PHIL BRININGER, JAMES :
CODY, JEFF PERRA, and TOM
:
HANRAHAN,
:
Defendants.
:
:
YOSIF BAKHIT and KIYADA MILES,
Plaintiffs,

CIVIL ACTION NO.
3:13-CV-1049 (JCH)

JULY 1, 2015

RULING RE: DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT (Docs. No. 124–33)
Defendant Safety Marking, Inc. (“Safety Marking”) is a company in the business
of painting lines on pavement (e.g., parking space borders, lane lines). Safety Marking
employed plaintiff Yosif Bakhit, a dark-skinned Muslim of Sudanese origin, from spring
2008 of until January 2013. Affidavit of Yosif Bakhit (“Bakhit Aff.”) (Doc. No. 157-3)
¶¶ 4, 81. It employed, and has continued to employ, plaintiff Kiyada Miles, a black man
of Jamaican descent, since spring of 2008. Affidavit of Kiyada Miles (“Miles Aff.”) (Doc.
No. 157-4) ¶ 3. In this case, Bakhit and Miles sue Safety Marking as well as Mark Kelly,
its President, Local Rule 56(a)1 Statement of Undisputed Facts in Support of
Defendants’ Motions for Summary Judgment Against Plaintiffs (“L.R. 56(a)1 Stmt.”)
(Doc. No. 134) ¶ 9 (admitted by plaintiffs), and five foremen who supervised crews of
Safety Marking workers, see Bakhit Aff. ¶ 7, under several legal theories. The plaintiffs’
basic contention is that the individual defendants, motivated by racial animus, engaged
in a variety of conduct against them and that, as a consequence, they suffered
damages. See Amended Complaint (Doc. No. 78). They seek to hold all defendants

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liable under theories of intentional infliction of emotional distress (“IIED”) under
Connecticut law (Counts XIII and XIV) and, under section 1981, title 42 of the United
States Code, creating a racially hostile work environment (Counts I and II). They also
bring claims under section 1981 against Safety Marking alone for: failure to train
(Counts III and IV); failure to promote, or demotion (Counts V and VI); pay
discrimination (Counts VII and VIII); less desirable work assignments (Counts IX and X);
and (Bakhit only) constructive discharge (Count XI). Bakhit did once, but no longer
does, pursue a claim for retaliation under section 1981 (Count XII). 1 The plaintiffs seek
declaratory and injunctive relief, compensatory and (as to the federal discrimination
claims) punitive damages, and reasonable attorney fees and costs.
The defendants in this case have filed ten Motions (Docs. No. 124–133) that,
taken as a whole, argue that all defendants are entitled to summary judgment on every
one of the plaintiffs’ claims.
Summary judgment for a defendant as against a plaintiff is appropriate on any
claim as to which no reasonable jury could find in favor of a plaintiff, i.e., where there is
no genuine dispute as to any issue of fact material to the adjudication of the claim and
the undisputed facts require a finding in favor of the defendant. See O’Hara v. Nat'l
Union Fire Ins. Co., 642 F.3d 110, 116 (2d Cir. 2011).
The court has reviewed all voluminous pleadings filed by the parties with respect
to the pending Motions. 2 Having done so, it concludes that this case is not one that is

1

See Plaintiffs’ Opposition to Defendants’ Motions for Summary Judgment (“Opposition” or
“Opp.”) (Doc. No. 157) at 70. The Motion for Summary Judgment as to this claim (Doc. No. 126) is thus
denied as moot.
2

Excluding tables of contents and other non-substantive portions, the defendants’ ten
Memoranda in Support of the Motions for Summary Judgment total well over 300 pages. These filings

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amenable to disposal on a summary judgment. The admissible evidence in the record,
including what is proffered by the plaintiffs and described in their Opposition and what is
admitted by the defendants, is sufficient to establish that a genuine issue of material fact
exists as to each element of their claims and, where the defendants raise affirmative
defenses, as to at least one element of each such affirmative defense. 3
For example, the defendants admit as fact that Safety Marking was “in general a
blue collar workplace environment in which a degree of racial or ethnic humor and slang
was tolerated,” and concede that the evidence supports the conclusion that
“discussion[s] about climbing trees, buying bananas on sale or even a couple of
inapproporiate jokes” occurred. Memorandum in Support of Motion for Summary
Judgment (Doc. No. 129-1) at 24–25. They nonetheless contend that the evidence of
“racial or ethnic humor” is insufficient to support IIED or hostile work environment
claims. Id. at 24. This characterization—which is reflective of the defendants’ papers
as a whole—seriously understates the evidence of inappropriate conduct and of
consequent suffering proffered by the plaintiffs. And, while the evidence proffered by

contain numerous verbatim (or, far worse, near-verbatim) duplication of arguments and statements of
facts. Perhaps the defendants wished to evade Local Civil Rule 7(a)2’s requirement that, “[e]xcept by
permission of the Court, briefs or memoranda shall not exceed forty (40) . . . pages.” This ingenious
approach multiplied not only the words that the court was required to review by 2, 4, or more times, but
(unsurprisingly, the court hopes) also the number of trees felled in printing and the amount of time
expended in reviewing these filings—and by similar factors. The court hopes, at least, that defense
counsel did not also intend to ask for correspondingly multiplied fees from its clients. In the future,
counsel is advised to simplify filings by using consolidated memoranda or the venerable tool known as
the “cross reference.”
3

This conclusion is without regard to the inadmissible parts of what the plaintiffs offer. Bakhit and
Miles come forward with some statements that do not reflect evidence admissible at trial. Some such
statements are inadmissible hearsay (e.g., statements by Bakhit or Miles that another employee reported
to them what one of the defendants had done—to the extent this is offered to prove what the defendants
had in fact done, rather than merely for Bakhit or Miles’ state of mind), and others offer no foundation
(e.g., statements by Miles or Bakhit that they simply were “aware of” some event or action by one of the
defendants).

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each plaintiff directly as to the severe emotional distress that he allegedly suffered is
sufficient on its own, “the extreme and outrageous character of the defendant's conduct
is in itself important evidence that the distress has existed.” Restatement (Second) of
Torts § 46 cmt. j (1965). The evidence raised is more than sufficient to support the
plaintiffs’ claims for IIED and hostile work environment.
For another example, the defendants somehow contend that the plaintiffs have
no evidence that they subjectively perceived their work environment as hostile. See,
e.g., Memorandum in Support of Motion for Summary Judgment (Doc. No. 128-1) at
19–21. The evidence is plainly to the contrary. See Bakhit Aff. ¶¶ 78 (conduct was
“racist” and “abusive”), 79 (Bakhit “broke down in front of a co-worker”); Miles Aff. ¶¶ 52
(Miles “expressed [his] frustration to numerous employees about the offensive
behavior”), 53–56 (Miles implies that he wanted to make complaints and felt abused
when he states that several coworkers “warned” him that, inter alia, “if [he] compained,
[he] would be forced out”).
The defendants also seem to contend that any evidence that Bakhit was
constructively discharged is rendered a nullity because, for example, Safety Marking’s
president wrote to him indicating that Bakhit was welcome at work and that he looked
forward to seeing Bakhit again soon, and, separately, because Bakhit made
representations suggesting an intention to return to work. See, e.g., Defendants’ Reply
Brief to Plaintiffs’ Opposition to Defendants’ Motions for Summary Judgment (Doc. No.
165) at 8. This evidence may be relevant to the question whether Safety Marking
“intentionally create[d] an intolerable work atmosphere that force[d Bakhit] to quit
involuntarily.” Whidbee v. Garzarelli Food Specialties, 223 F.3d 62, 73 (2d Cir. 2000);

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see id. at 74 (fact that employer “demonstrated an interest in retaining the plaintiffs”
tends to disprove employee’s constructive discharge claim). However, it does not
eliminate the substantial evidence that Bakhit proffers, and which is sufficient to
establish a genuine issue of material fact on this issue.
As a final example, Safety Marking contends that it cannot be held liable for the
actions of its employees in allegedly creating a hostile work environment because it can
establish the elements of the Faragher/Ellerth affirmative defense, which requires “that
(1) the employer exercised reasonable care to prevent and correct promptly any
discriminatory harassing behavior, and (2) the plaintiff employee unreasonably failed to
take advantage of any preventive or corrective opportunities provided by the employer
or to avoid harm otherwise.” Ferraro v. Kellwood Co., 440 F.3d 96, 101 (2d Cir. 2006)
(internal quotation marks and alteration omitted). However, both Bakhit and Miles have
submitted affidavits to the effect that numerous individuals of color who were also
employed at Safety Marking told them that, based on their own or others’ prior
experiences, it would have been a terrible idea to attempt to make any kind of complaint
about harassment, namely because doing so would not fix any problem—i.e., would be
futile—and because it would even lead to their facing further harassment or being fired.
See Bakhit Aff. ¶¶ 76–77; Miles Aff. ¶¶ 51, 53–57. Absent any evidence that there it
was unreasonable to believe these warnings, the court can only conclude that a
reasonable jury could find that Bakhit and Miles did not unreasonably fail to take steps
to redress the allegedly hostile work environment at Safety Marking. Moreover, Bakhit’s
Affidavit reflects that he did make some complaints in the past, but that these resulted
in, at best, no beneficial change. See Bakhit Aff. ¶¶ 21–22, 27–29, 40.

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In sum, because the court’s review of the papers before it reveals genuine
disputes as to material issues of fact that run across all of the plaintiffs’ claims except
Bakhit’s retaliation claim (Count XII), the parties must submit these claims to a jury. The
Motions are DENIED.
SO ORDERED.
Dated this 1st day of July 2015 at New Haven, Connecticut.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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