Beasley v. Lowe's Home Centers, Inc et al

Filing 53

Judge Richard G. Stearns: ORDER entered granting in part and dismissing without prejudice in part 38 Motion for Summary Judgment (Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-12665-RGS
ERIC BEASLEY
v.
LOWE’S HOME CENTERS, INC., MARGARET MILLER, MICHAEL
MEDICO, and UNNAMED LOWE’S EMPLOYEES
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
May 3, 2017
STEARNS, D.J.
Plaintiff Eric Beasley worked in the plumbing department at Lowe’s
Home Center in North Weymouth, Massachusetts for approximately three
years. From May of 2011, until he submitted his resignation on June 17,
2012, Beasley claims that he was “subjected to a campaign of racial slurs,
repeated threats to kill him, humiliating retaliation for availing himself of
Family and Medical Leave benefits, . . . repeated race discrimination . . . and
adverse employment actions in retaliation for his discrimination
complaints.” Pl.’s Opp’n at 1-2. Beasley filed a charge of discrimination with
the Massachusetts Commission Against Discrimination (MCAD) in 2012. He
filed this Complaint on June 19, 2015. The Complaint asserts seven claims
against Lowe’s, Margaret Miller (a Lowe’s human resources manager), and

Michael Medico (Beasley’s former supervisor).

They are: Race

Discrimination (Count I); violations of the Family Medical Leave Act (FMLA)
(Count II); violations of the Massachusetts Civil Rights Act (MCRA) (Count
III); Interference with Advantageous Contractual Relations (Count IV);
Defamation (Count V); Retaliation in violation of Federal Title VII and Mass.
Gen. Laws ch. 151B (Count VI), and Outrage/Infliction of Emotional Distress
(Count VII). Defendants move for summary judgment on all claims, arguing
that they are time-barred, lacking in factual support, and improperly pled.
The court heard oral argument on the motion on April 20, 2017.
BACKGROUND
Beasley’s Complaint contains twelve pages of tenebrous allegations
largely untethered to dates or context (the Opposition Memorandum is of
little help in deciphering the claims). As best as can be discerned from the
hodgepodge of pleadings and exhibits, the facts are as follows. Beasley began
working for Lowe’s, a national retailer of home improvement products, in
October of 2009, as a “Plumbing Pro.” In June of 2010, he was promoted to
the position of “Sales Specialist.” Defendant Medico became his supervisor.
On two occasions in early May of 2011, Beasley found threatening
messages (“You’re gonna die”) in his locker in the break room. On May 19,
2011, someone placed an offensive note in his locker (“you’re a n****r – U
2

haitian n****r”), followed by a drawing of a monkey’s head. Around the same
time, a “racist” drawing was found in the employee’s restroom (which an
African-American co-worker, Julius Frank, believed was directed at him).
Sometime thereafter, Beasley received a threatening telephone call while at
work in the plumbing department.1 Beasley reported some of these incidents
to defendant Miller, the store’s human resources manager. Miller undertook
an investigation, interviewing Beasley and several other employees. Miller
noted that Beasley “was very upset . . . . Does not know anyone who would
do this, gets along with everyone.

No one has been treating him any

differently. Does not know anyone having a problem with Julius [Frank] who
would take it out on him.” Miller was unable to identify a perpetrator, and
the incidents stopped. (That is, in May of 2011). Beasley Dep. 103.
In the fall of 2011, Beasley was approved to take FMLA leave.
According to Beasley, prior to his return, Medico told other employees that
Beasley needed to get back to work or he would lose his job.2 Beasley Dep.

Beasley testified that after answering a page, he heard an unfamiliar
male voice say, “I know where you work at. You’re going to die.” Beasley
Dep. at 121.
1

Beasley testified that the comment was made in May of 2012, just
before he resigned (Beasley Dep. at 14). Lowe’s business records, however,
show that Beasley’s post-FMLA leave accommodations commenced in
October of 2011. How Beasley came to know of Medico’s comment during
his absence is never made clear.
2

3

at 13-15. Beasley returned to work on October 12, 2011, as planned. On
November 26, 2011, Beasley requested a work accommodation from Miller,
namely to be exempted from heavy lifting and allowed to sit every ninety
minutes.

Miller granted the request and agreed to re-assess Beasley’s

physical condition in 30 days. See Defs.’ Ex. L.
Beasley claims that sometime in October of 2011, Medico called him a
“stupid n****r.”3 Beasley Dep. at 40-41. Beasley informed Miller of Medico’s
use of a racial epithet. (Medico denies making any offensive statement).
Beasley avers that Medico retaliated by subjecting him to “a relentless
campaign of racial harassment.” Compl. ¶ 12. Beasley states that in April of
2012, a co-worker (Steve Coyne) told him that he “had a bull’s-eye on [his]
back” and that Medico was trying to get rid of him.4 Compl. ¶ 13; Beasley
Dep. at 64-66. Beasley alleges that Medico ordered him “do things out of

In his statement of facts (“Uncontested Facts” ¶ 1 – Dkt #44), Beasley
claims that he “was the target of repeated racial slurs by his supervisor which
continued unabated after he reported them . . . .” In his deposition he testified
that Medico used a racial slur only once in his presence, but said that other
employees told him that Medico had uttered the slur on other occasions.
Beasley has offered no admissible evidence (for example, affidavits from
these former fellow employees) to substantiate the allegation. Beasley Dep.
at 70-74.
3

Beasley here as well has failed to produce any admissible evidence
(for example, an affidavit from Coyne) to support the allegation.
4

4

[his] job title such as cutting wood,” and complained (gratuitously) about the
appearance of the plumbing department shelves. Id. at 111-118. Beasley also
alleges that when he took three days from work to take a stress test in “March
or April of 2012,” Medico told co-workers Steve Coyne and Andlee Cribb that
Beasley’s medical condition was “faked.”5 Compl. ¶ 11; Beasley Dep. at 59.
Finally, Beasley complains that Miller refused him permission to trade a
work day in May or June of 2012 so that he could attend a NBA basketball
game.6
Beasley’s personnel file at Lowe’s contains two written warnings – one
for his failure to complete inventory replenishment sheets; the other a
warning for poor attendance.

These were written up in October and

November of 2010. The file also contains nine commendations for job
performance awarded between December of 2011 and May of 2012.7 On
March 3, 2012, Beasley received an increase in pay.

True to form, Beasley offers no affidavits or testimony from Cribb or
Coyne. Beasley Dep. at 59-60.
5

Miller denied Beasley’s request; Medico was uninvolved. It is not
clear what the allegation is intended to establish. Beasley testified that the
only person who ever retaliated against him at Lowe’s was Medico. See
Beasley Dep. at 26.
6

Two of the commendations (dated December 29, 2011, and January
7, 2012) were signed by Medico.
7

5

Offering Miller “and the company all the best,” Beasley submitted a
letter of resignation to Miller on June 17, 2012, telling her that “resigning
from [his] position at Lowe’s . . . was not an easy decision. . . . The several
years [he had] been at Lowe’s had been very rewarding and he had enjoyed
representing Lowe’s,” but Lowe’s had not “treated him fairly” during the final
three months of his employment.
Lowe’s and Beasley’s accounts of the circumstances of his resignation
differ, although in nonmaterial respects. Beasley states that his resignation
effectively amounted to a constructive discharge because he had become
uncomfortable at the prospect of remaining at Lowe’s. He also claims
(somewhat inconsistently) that Miller warned him that he would likely be
impacted by an anticipated layoff, and that by resigning, he would improve
his chances of being recalled. Miller agrees that she told Beasley of the
expected layoff, but states that Beasley told her that he had plans to move to
Atlanta to care for his ill sister. His question whether if he did so, Lowe’s
would be willing to take him back, prompted her advice regarding a letter of
resignation.8

This statement is corroborated by Beasley’s application for
employment at Walmart in which he stated that he left Lowe’s to “take care
of [an] ill sister.” Defs.’ Ex. P.
8

6

Beasley left Lowe’s on July 1, 2012, and applied for unemployment
benefits. Lowe’s (it is unclear from the record whether it was Miller or an
Ernst and Young employee, Kim Pistole) told the Division of Unemployment
Assistance (DUA) that Beasley had “quit” his job. Although Beasley was
initially denied unemployment benefits, he appealed and DUA reversed
course, after finding that he had “left work for good cause attributable to the
employer or for an urgent, compelling, and necessitous reason which
rendered his separation involuntary.”9 DUA Dec. at 2 (Dkt #43-3 at 31);
Mass. Gen. Laws ch. 151A, § 25C(2). Beasley states that he looked for other
employment for nearly a year, but that at least one of his applications was
rejected because of “an untrue negative reference from Lowe’s.”10
Eventually, he found a job at Walmart.
Beasley filed a charge of discrimination with the MCAD on December
10, 2012. Pursuant to a work-sharing agreement, the charge was cross-filed
with the Equal Employment Opportunity Commission (EEOC). App. at 4-8
(Charge). On June 19, 2015, Beasley brought this action and notified the

9

Lowes did not appear to defend the appeal before the DUA.

Beasley provides no evidence to support the allegation that Lowe’s
said untrue things about him to a potential employer.
10

7

MCAD that he was withdrawing the charge. The MCAD dismissed the charge
on December 18, 2015.
After completion of discovery, Lowe’s filed this motion for summary
judgment, asserting that Beasley has failed to administratively and factually
support his claims of discrimination and that, in any event, his claims are
time-barred.
DISCUSSION
In his Opposition, Beasley contends that the court is obliged to deny
defendants’ summary judgment motion because they “failed to provide
discovery” and omitted evidence of “triable issue[s] of material fact,” and
that moreover, “as a matter of law,” the court cannot require a “Plaintiff to
assert a genuine issue for trial” without engaging in impermissible “burdenshifting.” Pl.’s Opp’n at 7-8. Beasley is mistaken on both counts. First, the
complaint about a truncated discovery process is simply untrue. The court
extended the discovery schedule on two occasions and resolved several
disputes that arose during the process, including Beasley’s post-discovery
motion to compel (which the court allowed in part). Notwithstanding,
Beasley took no depositions and failed to provide defendants’ counsel with
the “medical records, employment records and witness testimony” that he
agreed to furnish in his Initial Disclosures.
8

Second, Beasley (or more accurately, his counsel) misapprehends the
law governing summary judgment. Federal Rule of Civil Procedure 56(c)
“mandates the entry of summary judgment . . . upon motion against a party
who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-323
(1986).

“[I]f a party resists summary judgment by pointing to a factual

dispute on which it bears the burden at trial [e.g., an affirmative defense],
that party must point to evidence affirmatively tending to prove the fact in
its favor.” FDIC v. Elder Care Servs., Inc., 82 F.3d 524, 526 (1st Cir. 1996).
Finally, a moving party is not required to prove a negative to avoid trial on a
specious claim. Carmona v. Toledo, 215 F.3d 124, 133 n.8 (1st Cir. 2000).
Statute of Limitations Defense: Federal Claims
Count I - Discrimination Claim under Title VII; Count VI –
Retaliation in Violation of Title VII
Lowe’s maintains that Beasley failed to file all but his defamation claim
within the applicable statutes of limitations. Focusing on the federal claims,
this court agrees.11 Beasley submitted his letter of resignation from Lowe’s
on June 17, 2012. Beasley filed this lawsuit on June 19, 2015.

As an initial matter, federal law does not support Beasley’s naming
of Miller and Medico as defendants – Title VII does not provide for individual
liability. See Fantini v. Salem State Coll., 557 F.3d 22, 30 (1st Cir. 2009).
11

9

A charge must be filed with the EEOC (or cross-filed) within 300 days
of the last complained-of discriminatory act.12 See Velazquez v. Developers
Diversified Realty Corp., 753 F.3d 265, 277 (1st Cir. 2014). The timeliness
requirement under § 2000e-5(e)(1) is “mandatory,” unless an equitable basis
for tolling can be shown. See Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 109-110, 113 (2002). Beasley filed his charge with the MCAD on
December 10, 2012. To be timely, Beasley must demonstrate that an act of
discrimination and/or retaliation on the part of Lowe’s occurred on or after
February 11, 2012 (that is, 300 days prior to December 10, 2012).
The racially inflammatory notes and drawings were discovered in May
of 2011. Medico’s alleged use of a racial epithet occurred in October of 2011.
The allegation that Medico “humiliated [Beasley] by spreading claims that
he was malingering” and had “faked” the need for a stress test has no date or
time frame attached to it. Compl. ¶ 11; Beasley Dep. 15. Even assuming that
the remark was made sometime after February 10, 2012, “stray remarks in
the workplace . . . , [when made] by nondecision makers [like Medico], or . .
. by decision makers unrelated to the decisional process itself’ normally are

The lawsuit itself must be filed within 90 days after notice the EEOC
(or MCAD) gives notice that the administrative charge has been dismissed or
a right-to-sue letter is issued. See 42 U.S.C. § 2000e-5(f)(1).
12

10

insufficient to prove [an] employer’s discriminatory animus.” Shorette v.
Rite Aid of Maine, Inc., 155 F.3d 8, 13 (1st Cir. 1998) (emphasis added).
Suarez v. Pueblo Int’l, Inc., 229 F.3d 49, 56 n.5 (1st Cir. 2000) (same).
Bennett v. Saint Gobain Corp., 507 F.3d 23, 32-33 (1st Cir. 2007) (same).
See also Velazquez-Fernandez v. NCE Foods, Inc., 476 F.3d 6, 11-12 (1st Cir.
2007) (a sole remark by a non-decision maker could not support an inference
of pretext); González v. El Día, Inc., 304 F.3d 63, 69 (1st Cir. 2002) (“‘[S]tray
workplace remarks’, as well as statements made either by nondecision
makers or by decision makers not involved in the decisional process
normally are insufficient, standing alone, to establish either pretext or the
requisite discriminatory animus.”).
According to Beasley’s Complaint, the following three incidents
between February and December of 2012 amounted to raced-based
discrimination by Lowe’s. First, “[i]n April of 2012, a co-worker informed
Beasley that Medico and human resources officials were looking for ways to
‘get rid of’ him.” Compl. ¶ 13. Second, “[i]n May or June [of 2012]” Miller
would not permit a co-worker “to cover a shift so [Beasley] could attend an
NBA championship game.” Id. Third, in June of 2012, Miller coerced him
into submitting a letter of resignation. Id. ¶ 8.

11

As thin as these allegations are, Beasley has failed to produce any
admissible evidence that links any of these incidents to a racial animus.
There are no sworn statements from any of the co-workers identified by
Beasley in his deposition as his sources for a racially-motivated campaign to
“get rid of him.” With respect to Miller’s refusal to approve a shift exchange,
Beasley admitted at his deposition that an assistant manager (“Kevin”) told
him that, Miller was following a company policy, namely that “the corporate
office would no longer allow employees to make agreements to cover each
other’s shifts.” Beasley Dep. at 133. While Beasley states that “two days later
[a] Caucasian employee was allowed to seek employee coverage for a shift,”
– specifically, he claims that Steve Coyne and someone named “Bernard”
switched shifts without filling out any paperwork – he offers no admissible
evidence of the fact. Id. at 134; Compl. ¶ 13. As for Miller’s advice — that in
light of the anticipated layoff, Beasley might be in a better position to reapply
if he resigned before being laid off – there is no evidence that the advice was
untrue or related in any way to Beasley’s race.
Beasley states in his Complaint that “Miller, unnamed defendants and
Lowe’s Home Centers committed further discriminatory . . . acts by making
derogatory statements about plaintiff which interfered with his job search
and false and misleading statements in August 2012 to the Massachusetts
12

Division of Unemployment Assistance leading to a denial of benefits . . . .”
Compl. ¶ 9. However, Lowe’s statement to the DUA that Beasley voluntarily
left its employment is consistent with the competent evidence – Beasley’s
resignation letter, his statements to Miller about his plan to move to Atlanta
to care for his sister, and his sworn Walmart application giving the same
reason for leaving Lowe’s.13

More pertinent, there is no evidence that

In any event, Beasley’s claim of constructive discharge is untenable.
To find a constructive discharge, “an inquiring court must gauge whether the
working conditions imposed by the employer had become so onerous,
abusive, or unpleasant that a reasonable person in the employee’s position
would have felt compelled to resign.” Suarez v. Pueblo Int’l, Inc., 229 F.3d
49, 54 (1st Cir. 2000). The “ultimate test is one of objective reasonableness”
and the “standard cannot be triggered solely by an employee’s subjective
beliefs, no matter how sincerely held.” Id. While the racist notes and
Medico’s stray, repugnant remark were, if true, discomfiting, they are “too
remote from the date of resignation . . . to constitute a constructive
discharge.” Cabrera-Ruiz v. Rocket Learning, Inc., 852 F. Supp. 2d 154, 172
(D.P.R. 2012) (holding comments made six months before plaintiff’s
resignation were too remote), citing Landrau-Romero v. Banco Popular de
P.R., 212 F.3d 607, 613 (1st Cir. 2000) (holding seven months too remote);
Serrano-Nova v. Banco Popular de P.R., 254 F. Supp. 2d 251, 265 (D.P.R.
2003) (holding six months too remote). Beasley’s only remaining accusation
against Lowe’s, that Miller’s enforcement of a company policy against shift
exchanges cost him the opportunity to see an NBA basketball game falls far
short of the onerous, abusive, or unpleasant aspect of a work environment
that would compel a reasonable person to resign under duress. See Blackie
v. Maine, 75 F.3d 716, 725 (1st Cir. 1996) (“Work places are rarely idyllic
retreats, and the mere fact that an employee is displeased by an employer’s
act or omission does not elevate that act or omissions to the level of
materially adverse employment action.”).
13

13

supports Beasley’s allegations that Miller ever acted towards him in a racially
hostile manner.14 See Beasley Dep. at 26-27, 86.
In the last sentence of his Opposition, Beasley states that “the
continuing nature of the misconduct requires that this court consider acts
which fall outside the limitations period.” Pl.’s Opp’n at 10. To trigger the
continuing violation doctrine in this Circuit, a plaintiff must demonstrate
that at least one anchoring incident in a series of related incidents that, taken
in their totality, had a discriminatory impact on the plaintiff, occurred within
the limitations period. Shervin v. Partners Healthcare Sys., 804 F.3d 23,
34-35 (1st Cir. 2015). As explained previously, there is no evidence of a
racially-motivated

anchoring

event

(other

than

unsupported

and

inconsistent allegations of discrimination) that falls within the limitations
period – February 10, 2012 to December 10, 2012.
Violations of the Family Medical Leave Act – Count II
Beasley contends that Lowe’s retaliated against him for his exercise of
his rights under the FMLA. The court notes that Lowe’s gave Beasley the
requested leave, approved his request for physical accommodations upon his
return, and gave him a salary increase shortly afterwards. But the fact that

The effort to demonize Miller is at odds with Beasley’s sworn
testimony that Miller, unlike Medico, had never retaliated against him. See
n.6, supra.
14

14

the FMLA is governed by a two-year statute of limitations ends the
discussion. See 29 U.S.C. § 2617(c)(1). Beasley’s last day of work at Lowe’s
was July 1, 2012 – clearly the FMLA claims are time-barred.
Massachusetts State Law Claims
As there are no remaining foundational claims, and no other basis for
federal jurisdiction, I will dismiss the remaining state claims without
prejudice. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988). Although the state law pleading are, in my opinion, threadbare at
best, there may be sufficient differences between federal and state law to
justify a second look by a state court judge.15 See 28 U.S.C. § 1367(c); Licari
v. Ferruzzi, 22 F.3d 344, 351 (1st Cir. 1994). Plaintiff’s counsel, however,
should take mind of her duty under Rule 11 to support her rhetoric and
allegations with competent evidence of actionable wrongdoing.

Unlike Title VII, Chapter 151B provides on its face for individual
personal liability. Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480,
491 (2000). Also, Chapter 151B prohibits employers from retaliating against
employees for engaging in protected conduct (opposing any unlawful
practices or filing a charge), including the filing of internal grievances, as well
as formal complaints, Ritchie v. Dep’t. of State Police, 60 Mass. App. Ct. 655,
664-665 (2004), and requires (unlike Title VII’s but-for causation) only that
a plaintiff engaging in legally-protected conduct, suffer an adverse
employment action, and that the two events be causally connected. Mole v.
Univ. of Massachusetts, 442 Mass. 582, 591-592 (2004). A retaliation claim
may succeed even where the underlying claim of harassment fails. See
Ritchie, 60 Mass. App. Ct. at 664.
15

15

ORDER
For the foregoing reasons, defendants’ motion for summary judgment
is ALLOWED as to the federal claims (Count I, Count II, and relevant part of
Count VI). The remaining state law claims are dismissed without prejudice.
Plaintiff’s attention is directed to Mass. Gen. Laws ch. 260, § 32; see also
DeSantis v. Commonwealth Energy Sys., 68 Mass. App. Ct. 759, 766 n.10
(2007) (“After dismissal of DeSantis’s pendent State claims he was entitled
to renew them in the Superior Court within one year.”); Thornton v. United
Parcel Serv., Inc., 565 F. Supp. 2d 273, 285 n.21 (D. Mass. 2008), aff’d, 587
F.3d 27 (1st Cir. 2009) (same).
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE

16